Volume 200 — Federal Reporter

In Rrror to the Circuit Court of the United States for the Eastern District of Michigan. Action by Benjamin H. McIntyre against the Modern Woodmen of America. Judgment for plaintiff, and defendant brings error. Defendant is a fraternal benefit society. George XT. McIntyre became a member in 1«95. In 3906 a death benefit certificate for -¶!3,000 was issued (in place of a then existing certificate), and made payable to McIntyre’s five children.

Suit in equity by William J. Harris against the English-Canadian Company, Limited; William E. Pearson, intervener. Decree for complainant, and intervener appeals. The appellee, Harris, was employed by the English-Canadian Company, Limited, an English corporation, in connection with its mining operations in Canada and British Columbia, and in the states of Oregon, Washington, and California, of the United States.

<p>In Error to the Circuit Court of the United States for the District of Colorado.</p> <p>Action by the Home Savings Bank against the Board of County Commissioners of the City and County of Denver. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Shipping (§ 49*) — Charters—Dispatch Monet.</p> <p>A provision in a charter .party for the payment of dispatch money Is for time saved to t¿he ship, and should be construed as applying only to the time comprised between the time when the loading or discharging is actually completed and the time when the lay days expire.</p> <p>[Ed. Note.. — For other eases, see Shipping, Cent. Dig. §§ 187-200, 202; Dec. Dig. § 49.*]</p> <p>2. Shipping (§ 49*) — Construction op Charter — Dispatch Money.</p> <p>A provision following the demurrage clause in a charter party, which also provides for dispatch money, that “all causes beyond the control of the shipper, consignee or the charterer which may prevent or delay the loading or discharging during the said voyage always mutually excepted,” does not entitle the charterer to dispatch money for time during which the vessel was delayed without her fault in commencing to discharge, although she finished before the expiration of the lay days allowed, and the cause of the delay was one beyond the charterer’s control, so that the time could not have been charged against him to render him liable for demurrage.</p> <p>[Ed. Note. — Eor other cases, see Shipping, Cent. Dig. §§ 187-200, 202; Dee. Dig. § 49.*</p> <p>Demurrage, see notes to Harrison v. Smith, 14 C. C. A. 657; Randall v. Sprague, 21 C. C. A. 337; Hagerman v. Norton, 46 C. C. A. 4.]</p> <p>3. Shipping (§ 50*) — Charter—Cost op Moving Vessel.</p> <p>A charterer is not liable for the cost of moving the vessel from one discharging berth to another, when the change was made by order of the commissioners of navigation of the port, and not at the charterer’s instance or request.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 150-155; Dec. Dig. § 50.*]</p> <p>4. Shipping (§ 49*) — Charter—“Time Saved in Loading.”</p> <p>Under a charter providing that dispatch money is to be allowed the charterer for “time saved in loading,” the phrase “time saved in loading” means the amount of time saved to a vessel from the time allowed for loading by the charter.</p> <p>[Ed. Note. — For other cases, see 'Shipping, Cent. Dig. §§ 187-200, 202; Dec. Dig. § 49.*]</p> <p>5. Shipping (§ 49*) — Construction op Charter — “Mutual”—“Mutually”— “Mutually Excepted.”</p> <p>The words “mutual” and “mutually,” as applied to an exception in the charter of a vessel, providing for allowances for demurrage and dispatch money, that delay from causes beyond control of the parties shall be “always mutually excepted,” cannot be construed in the sense of reciprocal in respect to the same broken engagement, but should be understood as meaning that the exception was intended to protect the parties from liability to each other, whenever performance of any covenant was prevented or delayed by any exception.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 187-200, 202; Dec. Dig. § 49.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4646, 4651.]</p>

Holland, Judge. Actioti at law by Lizzie M. Troxell, administratrix of the estate of Joseph Daniel Troxell, deceased, against the Delaware, Lackawanna & Western Railroad Company. Judgment for plaintiff, and defendant brings error.

the District Court of the United States for the Middle District of Pennsylvania; Charles B. Witmer, Judge. Action at law by Charles C. Ruckle against the American Car & Foundry Company. Judgment for plaintiff, and defendant brings error.

<p>Appeal from the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge.</p> <p>In the matter of Jacob Herrick, bankrupt. From an order allowing á claim of Rebecca S. Watson for rent, the South Side' Trust Company, trustee, appeals.</p>

Hollister, Judge. Suit in equity by the Robert A. Johnston Company against the Standard Chocolate Company, the Standard Manufacturing & Distributing Company, and W. C. Johnson. From an order granting a preliminary injunction, defendants appeal.

<p>1. Patents (§ 28*) — Designs—Patentability.</p> <p>Under Rev. St. § 4929, as amended by Act May 9, 1902, c. 783, 32 Stat. 193 (U. S. Comp. St. Supp. 1911, p. 1457), which authorizes the granting of a patent to “any person who has invented any new, original and ornamental design for an article of manufacture,” a patent may be granted for a design, although its ornamental character consists merely in a new and original shape given to an article of manufacture.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig, § 33; Dec. Dig. § 28.*]</p> <p>2. Patents (§ 15*) — Designs—Subjects of Design Patents.</p> <p>A clothes brush is a proper subject for a design patent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 13; Dec. Dig. § 15.*]</p> <p>3. Patents (§ 328*) — Validity and Infkingement — Design eoe Clothes Buusii.</p> <p>The Webster design patent, No. 40,789, for a design for a clothes brush, held not anticipated, valid, and infringed.</p>

<p>Patents (§ 328*) — Ini-eingbment—Mvcixage Holder.</p> <p>The Redington patent. No. 625,517, for a mucilage holder, claim 3, which describes a holder having an annular paste chamber and a central water chamber, with a cover adapted to seal both chambers, makes such sealing device an essential element, and the claim is not infringed by a holder in which the central or water chamber is not sealed with respect to the paste chamber.</p>

<p>In Equity. Suit by Howard D. Colman, Luther E. Miller, and Harry A. Severson, partners trading as the Barber-Colman Company, against the Byrd Manufacturing Company, the Harris Machinery Company, Britton E. Byrd, and John H. Harris. On final hearing.</p>

<p>In Equity. Suit by the De Long Hook & Eye Company against, the American Pin Company. On final hearing.</p>

<p>Patents (§ 328*) — Validity and Infringement — Printing Telegraph Receiver — Effect of Disclaimer.</p> <p>Tbe Joy patent, No. 780,664, for a printing telegraph receiver, claim 12, was not changed in character, nor invalidated, by the disclaimer filed, which substituted the words “constantly rotating drive shaft” for the Words “constantly acting source of power,” but limited merely, and, as so limited, it was not anticipated and discloses invention; also held infringed.</p>

<p>Patents (§ 328*) — Infringement—Pkinting Telegbaph Receives.</p> <p>Infringement of the Joy patent, No. 780,66-1, for a printing telegraph / receiver, claim 12, held not avoided by a modification of defendant’s machine previously held to infringe.</p>

<p>In Equity, Suit by the Moore Carving Machine Company against the Lucas Machine Company. On final hearing.</p>

<p>In the matter of the H. V. Keep Shirt Company, bankrupt. On review of order of referee disallowing in part the claim of Edward McConnell & Co.</p>

In Bankruptcy. In the matter of bankruptcy of A. Gaglione & Son. Gn certificate to review a referee’s order directing the trustee to> surrender certain property to petitioner, P. M. Walton, alleged to have been held by the bankrupt under a contract of lease or bailment.

In Equity. Suit by the Central Trust Company of New York against the Colorado Railway, Eight & Power Company. In the matter of the intervening petition of E. N. Kronenberg for allowance of claim arising on open account, and also that the claim be declared a lien upon the fund arising from the foreclosure sale.

<p>1. Indians (§ 38*) — Indian Reservation — Offenses—Jurisdiction.</p> <p>A prosecution for felonious homicide, alleged to have been committedl on an Indian reservation, is not maintainable in a federal court, under Act Cong. March 3, 1885, c. 341, 23 Stat. 362, 385, giving jurisdiction to the federal courts of crimes committed on Indian reservations in certain cases, where the indictment did not allege that either the defendant or the person killed was an Indian.</p> <p>[Ed. Note. — Eor other cases,- see Indians, Cent. Dig. §§ 22, 64, 66; Dec. Dig. § 38.*]</p> <p>2. Indians (§ 38*) — Federal Courts — Jurisdiction—Crimes on Withdrawn Indian Lands — Statutes—Construction.</p> <p>Act Feb. 2, 1903, c. 351, 32 Stat. 793 (Cr. Code, § 329),† provides that the District Courts of the United States for the district of South Dakota shall have jurisdiction of proceedings in which any person shall be charged with specified crimes, including homicide, committed on any Indian reservation in that state. Held, that such act became inoperative, in so far as any particular reservation was concerned, on the extinguishment of the Indian title.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. §§ 22, 64, 66; Dee. Dig. § 38.*]</p> <p>3. Indians (§ 38*) — Federal Courts — Crimes on Indian Reservation — Indian Title — Extinguishment.</p> <p>Act, Cong. Feb. 2, 1903, c. 351, 32 Stat. 793 (Cr. Code, § 329),† confers federal jurisdiction over certain crimes committed on Indian reservations in South Dakota. Act May 29, 1908, c. 218, 35 Stat. 460, opened part of an Indian reservation in that state to settlement, including the land on which the offense in question was committed. Section 2 of the act provided that, prior to the proclamation of the Secretary of the Interior, he was authorized in his discretion to permit Indians who had an allotment within the area described to relinquish the same and receive in lieu thereof an allotment anywhere within the respective reservations “thus diminished,” to which reservations the Indians might belong. Section 5 provided for the reservation of town-site tracts, which the Secretary was authorized to have surveyed into blocks and lots. Held, that the Indian title to land not included in town sites was extinguished at the time the act was passed, or the proclamation issued, and as to land included in town sites at least when .the town-site map was filed after survey; and hence a subsequent crime committed on a lot • within such town site was not within the jurisdiction of the federal courts.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. §§ 22, 64, 66; Dee. Dig. § 38.*]</p>

In Admiralty. Suit for collision by the City of New York, as owner of the ferryboat Richmond, against the steam tug George F. Randolph, the Baltimore & Ohio Railroad Company, claimant, with cross-libel by claimant.

<p>Removal or Causes (§ 49*) — Diversity of Citizenship — Separable Controversy.</p> <p>Au action in a state court by a person injured by falling on a sidewalk, against tlie owner of tlie abutting property and the city, both being charged in the complaint with having negligently permitted the walk to become out of repair and Unsafe, is one to recover for tlie concurrent negligence of both defendants, which created a joint liability, and there .is'no Reparable controversy, which renders the cause removable by the property owner, who is a nonresident: the other parties both being citizens of the state.</p> <p>LKd. Note. — For other eases, see Removal of Causes, Cent. Dig. §§ 93-99; Dec. Dig. § 49.*</p> <p>Separable controversy as ground for removal of cause, see notes to Robbins v. Ellenbogen, 38 (5. C. A. 86; Mecke v. Valleytown Mineral Co., 35 C. C. A. 155; Pollitz v. Wabash R. Co., 100 C. C. A. 4.]</p>

<p>In Equity. Suit by the Coca-Cola Company against the Deacon Brown Bottling Company and others. On motion for preliminary injunction.</p>

<p>Trade-Marks and Trade-Names (§ 95*) — Infringement—Injunction.</p> <p>Complainant’s trade-mark “Coca-Cola,” applied to a soft drink sold at soda fountains, was prima facie infringed by defendant’s sale of a similar preparation under the term “Extract of Coca and Kola,” so as to entitle complainant to a preliminary injunction.</p> <p>i'Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 108; Dec. Dig. § 95.*]</p>

<p>BANKRUPTCY (§ 297*)-JURISDICTION OF COURTS — ANCILLARY JURISDICTION.</p> <p>A summary proceeding by a trustee in bankruptcy to recover property belonging to the estate in the possession of a nonresident of the district of adjudication can only be maintained in the district of such person's residence, where the property is and the order must be enforced; the court of bankruptcy in such district having ancillary, jurisdiction to grant such order.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. § 413; Dec. Dig. § 297.*</p> <p>Jurisdiction of federal courts in suits relating to bankruptcy, see note to Bailey v. Mosher, 11 O. C. A. 313.]</p>

<p>In Equity. Suit by Ralph D. Collett, trustee of Charles Belling, bankrupt, against the Bronx National Bank.</p>

Cross-Appeals from the District Court of the United States for the District of New Hampshire; Edgar Aldrich, Judge. Suit by the Gardiner Investment Company against the Jackson Company and others. From an order granting an ad interim injunction, unless defendants filed a bond in the sum of $60,000 to protect complainant, defendants appealed; and complainant appealed from the provision giving, defendants the option to substitute a bond.

<p>Courts (§ 405*) — Circuit Court of Appeals — Record—Amendment.</p> <p>The rule applied that the Circuit Court of Appeals is without jurisdiction to allow an amendment of the record as sent up by the trial court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1097-1099; Dec. Dig. § 405;* Appeal and Error, Cent. Dig. §§ 156, 3302, 3386.</p> <p>Jurisdiction of Circuit Court of Appeals in general, see notes to Law Ow Bew v. United States, 1 C. C. A. 6; United States Freehold Land & Emigration Co. v. Gallegos, 32 C. C. A. 475.1</p>

Transferred from the Supreme Court of the Territory of Arizona. Criminal prosecution by the United States against John B. Goodwin. Judgment of conviction, and defendant appeals. As a case pending in the Supreme Court of the territory of Arizona on the 14th day of February, 1912, under Act June 10, 1910, c. 310, § 33, 36 Stat. pt. 1, pp. 557-577, it was transferred to the Circuit Court of Appeals for the Ninth Circuit upon the admission of Arizona into the Union as a state.

<p>1. Trial (§ 253*) — Instructions—Ignoring Issues.</p> <p>In an action for malicious prosecution, a request to charge that the fact that defendant consulted a reputable member of the bar and stated the facts to him would justify a finding that defendant was not affected by malice in commencing the prosecution was objectionable, as omitting the element of advice of counsel on the facts stated, and also the element of reasonable cause to believe the guilt of the person accused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 013-023; Dee. Dig. § 253.*]</p> <p>2. Malicious Prosecution (§ 72*) — Trial (§ 253*) — Defenses—Advice of Counsel — Instructions—Ignoring Issues. »</p> <p>In an action for malicious prosecution, a request to charge that, if the jury found that plaintiff stated the facts to a reputable member of the bar and was advised to commence the criminal proceedings, the jury should find for defendant, was objectionable for failure to limit the request to the question of malice, and also as omitting the element of advice of counsel on the facts stated and also the element of reasonable cause to believe the guilt of llie person charged.</p> <p>[Ed. Note. — For other eases, see Malicious Prosecution, Cent. Dig. §§ 163-173; Dee. Dig. § 72 ;* Trial, Cent. Dig. §§ 613-023; Dee. Dig. § 253.*]</p> <p>3. Malicious Prosecution (§ 72*) — Request to Charge — Definiteness.</p> <p>Where, in an action for malicious prosecution, there was a difference in the testimony of witness for defendant as to what facts had been laid before his counsel prior to the institution of the criminal proceeding, and there was evidence from which the jury might have inferred that certain material facts were concealed, and wore not related to counsel in seeking his advice, a request to charge that if plaintiff “stated the facts” to a reputable member of the bar, and was advised by him to commence the criminal proceeding, the jury should find for defendant, was objectionable, in that the expression quoted was too indefinite.</p> <p>[Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. §§ 168-173;. Dec. Dig. § 72.*]</p> <p>4. Trial (§ 255*) — Instructions—Necessity of Bequest.</p> <p>In an action for malicious prosecution, defendant could not successfully claim that, the court should have instructed that, though advice of counsel to defendant to commence the prosecution might be insufficient to establish the defense of probable cause, it nevertheless might be sufficient to negative malice, where the specific point was not brought to the court's att&ntion by a request to charge.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 627-641; Dee. Dig. § 255.*]</p>

<p>1. Carriers (§ 267*) — Transportation of Passengers — Operation of Trains —Rules.</p> <p>A railroad company may lawfully make reasonable rules and regulations for the operation of its passenger trains, the reasonableness of which is a question of law, when the circumstances which bring them ■ about are not in dispute.</p> <p>[Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 99-L-996; Dec. Dig. § 267.*]</p> <p>2. Carriers (§ 264*) — Transportation of Passengers — Regulations—Adequate Service.</p> <p>Where adequate local passenger traffic has been established by a carrier between two localities, a regulation that another train shall not engage in such traffic is a reasonable one.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1037-1039; Dec. Dig. § 264.*]</p> <p>3. Carriers (§ 264*) — Transportation of Passengers — Regulations.</p> <p>A carrier’s regulation for the operation of a limited train may reasonably permit the discharge of passengers at a particular station, and yet prohibit the taking on of passengers there.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1037-1039; Dec. Dig. § 264.*]</p> <p>4. Carriers (§ 264*) — Railroads—Folders.</p> <p>Folders issued by a railroad company, containing schedules provided for the operation of passenger trains, are not issued in the performance of any statutory or public duty; and hence the railroad companies issuing them are not required to adhere to the schedules appearing in the folders merely because they remain extant and in circulation.</p> <p>[Ed. Note.-^-For other cases,'see Carriers, Cent. Dig. §§ 1037-1039; Dec. Dig. § 264.*]</p> <p>5. Carriers (§ 251*) — Carriage of Passengers — Operation of Trains — Information from Agent.</p> <p>Where, pursuant to a carrier’s regulations, a limited train did not take on passengers at a station where plaintiff desired to board it, a question, asked by plaintiff of the agent at such station, whether the Limited was on time, to which the agent replied in the affirmative, was not an intimation that plaintiff would be accepted as a passenger on such train.</p> <p>[Ed. Note.- — For other cases, see Carriers, Cent. Dig. §§ 1014, 1026; Dec. Dig. § 251.*]</p> <p>6. Carriers (§ 251*) — Transportation of Passengers — Statement of Agent.</p> <p>Plaintiff, believing that he could ride on defendant’s limited train, went to defendant’s station shortly before train time, and, being informed by the agent that the Limited was on time, attempted to board the train, but was prevented from doing so because of a regulation withdrawing that train during the summer from local traffic between that station and the plaintiff's destination. Held that, since plaintiff’s situation was not caused or changed by the agent’s response, the carrier was not rendered liable to plaintiff tor damages by reason thereof.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 1014, 1026; Dec. Dig. § 251.*J</p>

Munger, Judge. In the matter of bankruptcy proceedings of Floyd Rawlings. Application by the bankrupt for discharge. F. B. Baylor, trustee in bankruptcy, filed resistance. From an order of the District Court, setting aside a referee’s report refusing the application and granting the discharge, the trustee appeals.

Petition to Revise Proceedings of the District Court of the United States for the District of Massachusetts, in Bankruptcy. Petition by Edward L. Loveland to revise in matter of law the proceedings (192 Fed. 1005) culminating in a summary order requiring him to surrender to his trustee in bankruptcy a policy of life insurance.

<p>In Error to the Circuit Court of the United States for the Southern District of Iowa; Smith McPherson, Judge.</p> <p>Action hy Clyde Stansberry against the Wabash Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

Action by the United States, for the use of the Hendrie & Bolthoff Manufacturing & Supply Company, against the National Surety Company; Judgment for plaintiff, and defendant brings error.

<p>Appeal from the District Court of the United States for the District of Massachusetts; Clarence Hale, Judge.</p> <p>Suit in equity by the Westinghouse Electric & Manufacturing Company against the CondJit Electrical Manufacturing Company. Decree for complainant, and defendant appeals.</p>

<p>Appeal from the District Court of the United States for the District of Massachusetts; Le Baron B. Colt, Judge.</p> <p>Suit in equity by the Brown & Sharpe Manufacturing Company against the Coates-Clipper Manufacturing Company. Decree for defendant, and complainant appeals.</p>

<p>Patents (§ 810'*‘) — Suit for Infringement — Pleading.</p> <p>Under the recognized practice in patent cases, in a bill for infringement. of several patents, a general allegation of their infringement collectively is sufficient.</p> <p>[TSd. Note. — For other cases, see Patents, Cent. Dig. §§ 507-540; Dee. Dig. § 310.*]</p>

<p>1. Trade-Marks and Trade-Names (§ 45*) — Marks Subject to Appropriation — Effect of Statute.</p> <p>The effect of the proviso in Trade-Mark Act Feb. 20, 1905, c. 592, § 5 (b), 33 Stat. 725 (U. S. Comp. St. Supp. 1911, p. 1461), which permits the registration of “any mark * * * which was in actual and exclusive use as a trade-mark of the applicant or his predecessor from which he derived title” for 10 years next preceding the passage of the act, was to render a mark so used in its registration a valid trade-mark, although it could not originally have been the subject of "ft valid trade-mark.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 53, 59; Dec. Dig. § 45.*]</p> <p>2. Trade-Marks and Trade-Names (§ 42*) — Constitutional Law (§ 209*)— Statute — Constitutionality.</p> <p>Tlie proviso in Trade-Mark Act Feb. 20, 1905, c. 592, § 5 (b), 33 Stat. 725 (U. S. Comp. St. Supp. 1911, p. 1461), which permits the registration as a, trade-mark of any mark which had been exclusively used as such for 10 years by the applicant or his predecessors, merely creates a conclusive' presumption of secondary meaning with respect to such mark, and is not subject to constitutional objection as discriminatory legislation.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 47; Dec. Dig. § 42;* Constitutional Law, Cent. Dig. § 678; Dec. Dig. § 209.*]</p> <p>3. Trade-Marks and Trade-Names (§ 95*) — Infringement.</p> <p>A preliminary injunction granted to restrain infringement of the name “Coca-Cola” as a trade-mark.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 108; Doc. Dig. § 95.*]</p> <p>4. Trade-Marks and Trade-Names (§ 57*) — Infringement.</p> <p>The use of an infringer’s name in connection with a trade-mark, instead of that of the owner does not render the unauthorized use of it loss of an infringement.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 65; Dec. Dig. § 57.*]</p> <p>5. Trade-Marks and Trade-Names (§ 95*) — ‘Suit fob Infringement — Preliminary Injunction — Bond.</p> <p>On the granting of a preliminary injunction against infringement of a trade-mark, the effect of which, if wrongfully granted, will be to cause a loss to defendant not capable of fair approximation, it is competent for the court to fix a sum as liquidated damages, and require complainant to give security for its payment, if final relief should be denied.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 108; Dec. Dig. § 95.*]</p> <p>6. Trade-Marks and Trade-Names (§ 3*) — Descriptive Character of Words — “Coca-Cola.”</p> <p>In the absence of a definite popular meaning of either the words “coca” or “cola,” as indicating either coca leaves or cola nuts, or any particular constituents or compounds of the same, the word “Coca-Cola” should probably be regarded as merely suggesting the elements of the compound, and not as descriptive of its contents and in effect an arbitrary combination of words not describing the elements of the compound, but serving merely to identify it as a trade-mark name.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 4-7; Dec. Dig. § 3.*]</p>

<p>In Equity. Suit by the Coca-Cola Company against the Nashville Syrup Company.</p>

<p>1. Bankruptcy (§ 78*) — Involuntary Proceedings — Right op Receiver to Contest.</p> <p>A receiver for a corporation, appointed by a state court and in possession of its property, may resist proceedings to have tbe corporation adjudged a bankrupt.</p> <p>[Ed. Note. — Por other cases, see Bankruptcy, Cent. Dig. §§ 111, 112; Dec. Dig. § 78.*]</p> <p>2. Bankruptcy (§ 76*) — Petitioners—Estoppel.</p> <p>A creditor of a corporation, who assisted in having a receiver appointed for it by a state court, and filed its answer consenting thereto, is estopped to subsequently file a petition against it in bankruptcy, based on sueh appointment as an act of bankruptcy.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ 50, 56, 97, 99, 100; Dec. Dig. § 76.*]</p> <p>3. Bankruptcy (§ 6Ó*) — Acts op Bankruptcy — Consenting to Appointment op Receiver — “Applied por a Receiver.”</p> <p>The consent of a corporation to the appointment of a receiver for its property on an application by others is not equivalent to having “applied for a receiver,” as an act of bankruptcy under Bankr. Act July 1, 1898, c. 541, § 3a (4), 30 Stat. 546 (II. S. Comp. St. 1901, p. 3422), as amended by Act Feb. 5, 1903, § 2, e. 487, 32 Stat. 797 (U. S. Comp. St. Supp. 1911, p. 1493).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 80; Dee. Dig. § 60.*]</p> <p>4. Bankruptcy (§ 63*) — Acts op Bankruptcy — Corporations.</p> <p>A corporation can admit its inability to pay its debts and its willingness to be adjudged a bankrupt on that ground, to constitute an act of bankruptcy under Bankr. Act July 1, 1898, c. 541, § 3a (4), 30 Stat. 546 (U. S. Comp. St. 1901, p. 3422), as amended by Act Feb. 5, 1903, § 2, c. 4S7, 32 Stat. 797 (U. S. Comp. St. Supp. 1911, p. 1493), only by some corporate act, and such an admission, signed by a majority of its directors individually, is ineffective.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 63.*]</p>

In Equity. Suit by Oscar Hammerstein against Felice Lyne. On plea to the jurisdiction.

<p>Bankruptcy (§ 317*) — Provable Claims — Costs.</p> <p>Under Bankr. Act July 1, 1898, e. 541, § 63a (3), 30 Stat. 562 (U. S. Comp. St. 1901, p. 3447), which authorizes proof of a debt “founded upon a claim for taxable costs incurred in good faith by a creditor before the filing of the petition in an action to recover a provable debt,” a creditor, who brought suit, recovered judgment, and levied execution thereunder before the bankrupt filed a voluntary petition in bankruptcy, cannot be charged with bad faith merely because he may have known or believed that the debtor was in financial straits when he sued.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 493-495; Dec. Dig. § 317.*]</p>

In the matter of Rber Harnden, bankrupt. On petition for review of action of referee in rejecting claim of the Dexter State Bank under a chattel mortgage.

<p>At Law. Action by the Wilson Case Lumber Company against the Mountain Timber Company. On demurrer to amended complaint.</p>

Action by the National Pole Company against the Chicago & Northwestern Railway Company. On demurrer to complaint.

<p>In Bankruptcy. In the matter of bankruptcy proceedings of Jacob Rosenthal and others, individually and as members of the firm of S. Meyer & Co. Application for an order for the surrender of assets.</p>

<p>At Law. Action by Max Stupeck against the Union Pacific Railroad Company. On demurrer to complaint.</p>

<p>1. InstjeaNce (| 379*) — Brokers—Agency fob Insured — Brf.ach of Warranty.</p> <p>An insurance agent applied to decedent to take out insurance, which he agreed to do. The agent did not regularly represent defendant, but went to defendant’s office, and presented an application for a policy containing false answers made by the agent to questions relating to decedent’s physical condition; the application being signed by the agent as a “broker, solicitor, agent, or subagent.-’ The policy was made out and delivered to the agent, who collected the premiums from decedent and paid the same to defendant’s agent, by whom he was paid commissions. The policy itself incorporated the statements made in the application, and provided that all of them should be regarded as warranties made by the insured on accepting the policy. It was delivered to the insured, and by him accepted and retained without objection. Held, that the agent was not the agent of the insurer in such sense as to estop the latter from asserting that the agent’s misstatements constituted breaches of warranty in defense of the policy.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 999-1015; Dec. Dig. | 379.*]</p> <p>2. Insurance (§ 291*) — Accident Policy — Breach of Warranty — “Bodily Deformity.”</p> <p>Where an application for an accident policy warranted that insured had no bodily deformity, and it was conceded that he was born without fingers on his right hand, there was a sufficient breach of warranty to avoid the policy.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 681-690, 694-696; Dec. Dig. § 291.*]</p>

Riner, Judge. Action by Ranson B. C. Kirkendall against the Union Pacific Railroad Company. Judgment for defendant, and plaintiff brings error. Kirkendall brought this action against the Union Pacific Railroad Company for the purpose of recovering damages for injuries which he received on the morning of February 26, 1903, while he was being transported, as he claims, as a passenger for hire on a train of the railroad company near the town of Sterling, Colo.

Amidon, Judge. Action by Edgar C. Williams against the Chicago, Burlington & Quincy Railway Company. Judgment for plaintiff, and defendant brings error. Held: strictly responsible for permitting persons to ride on stock contracts, except when in charge of live stock. No. of Waybill. Number and Initial of Car.

Action by Thomas Williams against the Bunker Hill & Sullivan Mining & Concentrating Company. Erom a judgment for defendant non obstante veredicto (190 Eed. 79), the plaintiff brings error.

Pollock, Judge. Foster E. Ackley was convicted of sending through the mail a letter informing the addressee where she could purchase articles designed, adapted, and intended to prevent conception, and he brings error.

<p>In Error to the District Court of the United States for the Southern Division of the Western District of Washington.</p> <p>Action at law by the Pacific National Dumber Company against the Empire State Surety Company. Judgment for plaintiff, and defendant brings error.</p>

Appeal' from the District Court of the United States for the First Division of the Northern District of California. In the'matter of the Central Planing Mill, a corporation, bankrupt. From an order allowing the claim of W. J. O’Connell, W. S. Brown, trustee, appeals.

<p>In Error to the District Court of the United States for the District of Kansas; John C. Pollock, Judge.</p> <p>Mel Schultz was convicted of feloniously passing, uttering, and publishing a raised silver certificate of the currency of the United States, and he brings error.</p>

<p>1, Municipal Corporations (§ 120*) — City Ordinances — Construction.</p> <p>A city ordinance, authorizing the Bouisiana Purchase Exposition Company to use one of the city parks for its exposition, provided that the city’s board of public improvements should have power to regulate the construction of all sewers, drains, and conduits of any kind, and the laying of water pipes or fixtures, that no sucli work should be done without the approval of the board, and that “all such sewers, drains, conduits, pipes, and fixtures should become and be the property of the city.” The succeeding section required the Exposition Company, within 6 months after the close of the exposition, to clear the site, and within 12 months restore the park according to plans to be approved by the board. Held, that the ordinance was not to be construed as vesting in the city, after tlie exposition, title only to such sewer and water pipes, tubes, drains, conduits, and appertaining fixtures as were necessary to the park as restored, but that all of the sewer and water pipes, drains, etc., and fixtures, except those above ground in the buildings, belonged to the city.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 274-2S0; Dec. Dig. § 120.*]</p> <p>2. Municipal Corporations (§ 120*) — Ordinances—“Construction”—What Constitutes.</p> <p>Construction of a city ordinance is an effort, by applying certain rules, to ascertain the intention of the parties, when it is not clearly disclosed by their own forms of expression. If the language is clear and explicit, no exposition contrary to the express words will be allowed; but when, construction is needed, the relation between the parties, the circumstances attending the execution of the instrument, and the acts done under it before a difference arose may be considered, to determine the identity of the subject-matter and its extent, and to explain ambiguities and uncertainties in the terms, not, however, to substitute another contract or other terms for those clearly and definitely expressed.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 274-280; Dee. Dig. § 120.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1479-1480.]</p>

<p>1. Baxks and Basking (§ ISO*) — Cashier's Check — Consideration.</p> <p>Cheeks of a contractor, employed io construct city waterworks, drawn on defendant bank, having been protested, the bank offered to pay plaintiff, from whom the contractor liad purchased supplies, $5,870.71 in cash if plaintiff would wait for the balance until bonds of the city issued to pay for the waterworks, in the hands of the bank for sale, had been sold. A cashier’s check for such sum was issued by defendant bank and delivered to plaintiff!; but the bonds not having been sold, and the bank never having received anything therefor, payment was refused. Plaintiff’s assistant secretary testified, that there was no consideration for the cashier’s check, except the bank’s promise to pay the contractor’s chocks, and that 'he did not know of his own knowledge, except what certain correspondence showed, as to whether any of the materials which had been stoi>ped in transit were released on the delivery of the check. Held, that the check was without consideration and unenforceable.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 729-732, 73G; Bee. Dig. § 189.*]</p> <p>2. Banks and Banking (§ 227*) — Cas hike's Check — Action—Evidence.</p> <p>In an action against a bank on a cashier’s check, evidence of a prior telegram, sent by the bank to plaintiff, advising it of the payment oí a draft for certain cement sold by plaintiff to the contractor, and promising to pay another during the current week, was immaterial.</p> <p>[Ed. Note. — For other eases, see Banks and Banking, Cent. Dig. SS 871-873; Dec. Dig. § 227.*]</p>

Action by H. J. Butler Studley, as trustee of the Collver Tours Company, against the Boylston National Bank of Boston, to recover alleged preferences. From a decree dismissing a petition, the trustee appeals.

Hollister, Judge. Suit in equity by Ellen M. Goin against the Cincinnati Realty Company. Decree for defendant, and complainant appeals. In May, 1890, the appellant, then 13 years of age, owned an interest in remainder in the real estate herein involved. Such interest arose under the will of her grandfather, and was subject to a life estate in her mother. The exact character of the interest is not now important.

<p>In Error to the District Court of the United States for the Southern District of New York; George C. Holt, Judge.</p> <p>Action by Emil Bransteeter against the New York, New Haven & Hartford .Railroad Company. Judgment for plaintiff, and defendant brings error.</p> <p>This cause comes here upon writ of error to review a judgment entered upon a verdict in favor of defendant in error, who was plaintiff below. The action was brought by a brakeman, to recover for personal injuries resulting from a fall from the top of a box car while his train was standing in the New Haven yard. The accident happened on a dark sleety night, when the falling rain froze as it fell, and the top of the cars and the running boards thereon were coated with ice. He was engaged in releasing a brake, and, finding the dog frozen, placed his lantern on the running board of the car in front till he could disengage the dog. ' As he released the brake, the lantern slipped. He tried to recover it, hut it had gone to one side of the roof, and to get it he had to step on the running hoard and reach over. As he did this, his foot went from under him, and he fell.</p>

Hazel, Judge. Action by Richard S. Templeton, as trustee in bankruptcy for Frank J. Kehler, against Moses Wollens, to recover a payment made to the defendant in accordance with a proposed compromise as an alleged preference. Judgment for defendant, and plaintiff brings error.

<p>Appeal from the Circuit Court of the United States for the Southern District of Ohio; John E. Sater, Judge.</p> <p>Suit in equity by John W. Young against James Burley and others. Decree for defendants, and complainant appeals.</p> <p>The following is the opinion, by Sater, District Judge, in the court below:</p> <p>Tiio bill charges infringement of patent No. 838,155, applied for March 17, 1906, by J. W. Young, and issued December 11th following. The patent relates to new and useful improvements in the method of decorating earthenware. Its object is to produce an ornamental ware with but a single firing of the material, thereby producing crockery having an underglazed ornamental design comparing favorably with the ordinary twice-fired white Bristol glass or Holland ware. The method involves the use of a flexible rubber stamp resting upon a soft cushion, and with the outlines of an elastic design in high relief to be transferred to the surface of the crockery. The various parts of the design are brought yieldingly into contact with the surface of the crockery while in a green state, whether such surface be convex or concave. To transfer the design to the damp surface of the ware, the stamp, preferably the center portion of it, is first lightly applied to the convex or concave surface, and is then tilted back and forth on the ware to imprint the whole of the design. It would seem, however, that difficulty would be encountered iu this form of manipulation in decorating concave surfaces. Slight pressure of the stamp on the curved surface of the crockery is sufficient, it is claimed, to imprint on the ware the coloring matter on the design. The article is then dipped in a glaze and fired once. Coloring material of the character required is prepared and kept conveniently near, and, when desired, the design is brought in contact with it and is thus coated anew. Economy and speed in the production of ornamental ware is claimed for the method. A fair construction of the specification and complainant’s evidence is that the stamp contemplated is a hand stamp. The patent also specifies a method of applying an open work design to the surface of crockery, but that need not be considered.</p> <p>The defendant admits infringement, if the patent is valid. It asserts that, long prior to the time Young filed his application for a patent, each and every step of the process claimed in his patent was old and commonly known and practiced among potters, and that it is therefore wanting both in novelty and invention. Young is a traveling salesman, and not a practical potter. He is unacquainted with the prior state of the art. He doubtless thought considerably and experimented some regarding his process, but his experimenting was not great.</p> <p>Considering Young’s patent with reference to the art prior to the date of his application and his asserted conception of his method, it appears that the Buck patent, No. 483,343, issued in 1892, was for a rubber hand stamp with a yielding cushion of soft India rubber mounted with letters of rubber type, whose imprint by pressure could be made upon surfaces, plain, uneven, convex, or concave. Buck’s patent No. 505,327, issued in 1894, for a printing stamp, discloses a device embodying- in a substantial manner the characteristics of Ms earlier patent. The Smith patent, No. 535,736, issued in 1S94, was also for a cushioned hand stamp. Smith’s specification recites, what was even then a well-known fact, that for many years rubber hand stamps had been made with printing characters cushioned with a layer of soft rubber or of elastic gelatinous material known as roller composition, or of soft rubber sponge, or as in the Buck patent No. 483,343. He provided for a flexible cushion with a spongy interior or body, mounted on a plate and compounded of rubber and some suitable comminuted substance which fakes a gaseous form when heated. Above the cushion is the printing face of the type or elastic printing die, which contacts with the surface on which the printing is to be done. The surface may be plain, uneven, or irregular. His stamp may be made in the form of a block with a rubber die cemented thereto. The cushions may be manufactured in various sizes and supplied as au independent article of manufacture by rubber stamp makers at a small cost, and may be attached to such mountings as may be desired, and are specially adapted, the patentee claims, to be used in the various sizes and styles of lever, self-inking, and other mechanical stamps in common use.</p> <p>DeicLrick’s application, made December 13, 1904, for a patent for decorating chinaware while frail and in the green state, and applicable to the decoration of green ware, bisque ware, glazed ware, earthenware, glassware, or any frail object, of any form whatsoever, antedated that of Young by 15 months; the patent No. 808,439, issued thereon December 26, 1905, almost a year prior to Young’s. Deidrick uses a roll provided and underlaid with a cylindrical soft spongy rubber body, having a harder and firmer exterior coating of vulcanized rubber carrying the pattern, design, or configuration. The rubber coating was secured to the spongy rubber by rubber cement or other adhesive material. The elasticity of the printing roll is such as to permit it by slight pressure to impress the pattern upon the ware without breaking it. Deidrick uses a roll; Young a pad. Both invoke the same principle and for the same purpose — the decoration of ware at reduced cost. Deidrick employed a guide to obviate irregularities in the transfer of the design; Young relied on the skill of the operator to obtain the same result. In tile use of the Deidrick method, if a 'change in the decorative device is desired, the roll is removed and another substituted of a different pattern; in that of Young, the rubber stamp of a given pattern gives place to one bearing a different design. The Deidrick device is self-inking; i. e., the coloring matter is contained in a reservoir, and is imparted to a ribbon which contacts with and is thus impressed on the design on the exterior of the rubber roll. In Young’s method, the design on the exterior of the pad is coated with coloring matter by pressing and contacting the pad with such matter. In the one, the design is continuously supplied with coloring matter; in the other, intermittently, as the judgment of the operator suggests; in both, the soft spongy rubber takes up the excessive pressure and prevents the breakage of the ware.</p> <p>Young claims that his conception of his method antedates that of Deidrick, in that he first thought of i’t in 1902. He did not, however, test it until later, because he was awaiting a more perfect white ware. He says he wrote to Deidrick in July or August, 1904, that he was positive he could decorate ware with a rubber stamp in the green state, fired with one firing. No effort was made by either party to produce the letter, or by the defendant to show its nonreeeipt or nonexistence. Young’s first attempt at decorating with a hand stamp was made in April, 1905, and was unsuccessful. A second attempt made at Dayton, Ohio, was also a failure. A cushioned stamp was subsequently successfully used. In the month of April he made an arrangement with the Globe Pottery Company for the production of ware by his method, but it was not put into operation. A fruitless effort was made in May to have the goods made by the Keystone Pottery Company, with which two of the Burleys were connected. In June he made an arrangement with the Crooksville Novelty Works. The stamps used were of Young’s procurement, but the goods produced were blemished and unsatisfactory. This was apparently the first time his method as an entirety was tested. William N. Burley learned in “1904, or something like that,” that Young was decorating Bristol stoneware by the use of a rubber stamp at the Union Pottery. The date given is manifestly erroneous, because Young did not succeed in his use of rubber stamps until April, 1905, and the Union Pottery Company did not succeed the Filter & Pottery Company, with which Young had entered into a .contract on September 20th, until the fall of that year. Burley, however, had known of the practice of decorating green ware by the use of rubber stamps for 10 or 12 years. He first gained his information from the companies operating at Akron, Ohio. For 7 or 8 years at least he had known of that method of decorating by different factories, one of which was the Star Pottery Company, in which he was financially interested.</p> <p>Complainant produced three letters, dated October 9, 24, and 30, 1904, respectively, written to his wife, in which he declared his intention to have rubber stamps made for decorative purposes and his belief that he could patent the decorating. These three declarations on the same subject-matter were all made to the same person, his wife, in three postscripts to 'as many letters, and were all written with a lead pencil; one of the letters, however, being written in ink.</p> <p>The defense, by its witness Crandall, superintendent of the Red Wing Ynion Stoneware Company, of Minnesota, and a practical potter, proved that cushioned rubber stamps had been used by that company in 1898 and continuously and extensively since to impress designs on green ware which was subsequently fired but once. He lirst suggested the method to his employer, and had personally used such stamps in that method of manufacturing'. He produced, not only samples of the ware, but stamps that had been used. He fixed the date by incidents connected with the Spanish-American War and by the period at which his employer changed the glaze of its ware, which was in 1900. He named the poison who stamped and glazed one of the exhibits. He thinks, from the color of the glaze, that he himself applied the design to another. He named two other shops which employed the same method. Fidlar, another factory superintendent and a practical potter, testified that his employer, doing business in Pennsylvania, has manufactured the same kind of pottery as the defendant company makes, and that his acquaintance with the use of cushioned rubber stamps to transfer designs to such ware in the green, uuglazed state dates back as far as 1888. He found orders given in that year for ware thus produced. The ware was fired but. once. He produced a stamp which his employer procured from another company in 1890. As foreman it was his duty to see that the fgoods were properly stamped. The history of his experience, which resulted in the use of such stamps, is not unlike that of Young's. He had no difficulty in coloring or glazing.</p> <p>The effort to discredit these two witnesses and minimize the effect of their evidence is unavailing. Their evidence cannot he rejected, except on the ground of willful and corrupt untruthfulness. The designs used by them were simple, but the difference between them and the somewhat more elaborate ones used or suggested by complainant is in degree and not in kind. The method employed by them is similar to — X think the same as — Young’s. A process patent can be anticipated by a similar process. The slight alteration in the design of the pads used by Crandall and Fidlar In the process of manufacturing their employers’ wares was such as would have occurred to an ordinary mechanic whose duty it was to make practical use of the method described. Carnegie Steel Co. v. Cambria Iron Co., 185 U. S. 403, 22 Sup. Ct. 698, 46 L. Ed. 968. The method employed by the factories with which those two witnesses were connected was intentionally designed, apparently adapted, and actually used to perform the function covered by, the Young patent, and therefore strips the Young patent of novelty. Walker on Patents, § 68.</p> <p>Prior knowledge and use in this country by even a single person of the method of fhe patent negatives novelty. Walker on Patents, § 71; Brush v. Condit, 132 U. S. 39, 10 Sup. Ct. 1, 33 L. Ed. 251. It is true that novelty of mechanical means was not necessary, providing the result obtained by Young had not been reached before. Corning v. Burden, 15 How. 252, 14 L. Ed. 683; Mowry v. Whitney, 14 Wall. 620, 20 L. Ed. 860. The instrumen-talities employed were known before. The query therefore is: Were they ever so previously employed as to accomplish a new and useful result? Andrews v. Carman. 13 Blatchf. 307, Fed. Cas. No. 371. The answer must be in the affirmative. The defense has established this by the burden of proof' (Pittsburgh Reduction Co. v. Cowles Electric S. & A. Co. [C. C.] 55 Fed. 308) and beyond a reasonable doubt (Coffin v. Ogden, 18 Wall. 120, 124, 21 L. Ed. 821; Simonds Rolling Machine Co. v. Hathorn Mfg. Co., 93 Fed. 961, 86 C. C. A. 24; Walker on Patents, § 76). Before Young conceived the idea of decorating by means of a cushioned, flexible, yielding rubber hand stamp on surfaces plain, uneven, concave, or convex, even an indifferent investigator would have learned that stamps possessing all of those characteristics, and susceptible of use on all such kinds of surfaces, were well known, and that certain specific forms of such stamps had been patented. He had no difficulty in securing rubber stamps. The fragile nature of the material to which they were to be applied by him and on which the desired design was to be imprinted would readily suggest to one skilled in the art the employment of a yielding cushion. The transference of numerals and printing to surfaces of bodies would readily suggest to such a person that designs might be treated in the same manner. He cannot successfully object to the use of rubber stamps bearing a design, because such stamps had long been previously used. Neither can he object to the application of such stamps to green ware, or to the firing of such ware but once, because that, too, had long been practiced. It, therefore, is immaterial when Young first conceived his method, and whether his conception antedates that of Deidrick or not. His method was neither novel nor patentable.</p> <p>It is not necessary to review the evidence given by Deidrick for the defense, or by the witnesses produced to discredit his statements. The case may be decided without reference to that controversy. One of the impeaching witnesses, Wiant, as early as 1893, decorated green ware, so he states, which was fired but once, except when the decorating was faulty, then a second firing was had. He had known of the use of rubber stamps in the pottery business for 16 years.</p> <p>The notices served by the defendant to take testimony stated the names of the witnesses and the city or village in which they lived. There is no evidence that the failure to state the street numbers or their residences misled the complainant,' nor is there merit in the contention that notice of the time of taking depositions was too brief. The complainant’s counsel were present and cross-examined. The notices were sufficient.</p> <p>Objection is still urged to the permission given to defendant to amend its answer. These amendments were permitted after a large amount of evidence, now discarded, had been taken. Counsel then representing the defendant, although learned in the state practice, was unfamiliar with the practice of patent law. The record as then made would have entailed great and needless labor on the court. The amendments were allowed, not only to lighten the court’s labor, but in the interest of justice. The right to amend should not be denied, when either of these results will be advanced.</p> <p>The bill is dismissed, and an order may be drawn accordingly.</p>

<p>1. CobpoRations (§§ 308, 566*) — Officers — Right to Compensation for Services Outside Ordinary Duties — Priorities.</p> <p>The president of a public service corporation, who receives no salary as such officer, cannot recover for services rendered to the corporation outside the duties of his office, in the absence of an agreement by the corporation, through its directors, to pay therefor, either express or implied; and even in case of such agreement his claim is not entitled to preference over those of mortgage bondholders on its insolvency.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 133d-1349, 2283-2286; Dec. Dig. §§ 308, 566.*]</p> <p>2. Corporations (§ 568*) — Preferred Claims — “Six Months Rule.”</p> <p>The rule that, if a public service corporation diverts its income from the payment of current expenses to the improvement of the mortgaged property, so that the current expenses remain unpaid when a receiver is appointed, the court may, out of the income accruing during the receivership, apply to the unpaid claims for current expenses the amount so diverted, has been limited by so many courts to claims arising within six months before the receivership, that it has become known as the “six months rule.”</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2288, 2289; Dec. Dig. § 568.*]</p>

<p>In Equity. Suit by W. A. Carlisle against C. Elmore Smith and others. Application for an injunction pendente lite.</p>

<p>Mines and Minerals (§ 70*) — Mining Lease — Action for Breach — Complaint. '</p> <p>In an action on a lease of coal land, winch required defendant to mine the coal contained in a vein, unless prevented by fire, explosion, or other unavoidable casualty, plaintiff is not required to allege that the vein has not been exhausted, or that its working was not prevented by fire, explosion, or other unavoidable casualty; such conditions, if existing, being matters of defense.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 192-197; Dec. Dig. § 70.*]</p>

<p>In Equity. Suit by the Southern Development Company against Iven J7 Endersen, otherwise known as Iven J. Endresen. Heard ■on bill and answer.</p>

Suit by Henry D. Hotchkiss, as trustee in bankruptcy of Henry S. Haskins, Henry Leverich, individually, and Fannie G. Lathrop, special partner, and as copartners trading as Lathrop, Haskins & Co., against the National City Bank of New York, to recover certain securities claimed by the bank to have been pledged for certain clearance loans made by the hank to the bankrupts, who were stockbrokers doing business on the New York Stock Exchange.

<p>1. Bankruptcy (§ 166*) — “Preference”—Security for Clearance Loan— Stockbrokers.</p> <p>The bankrupts being largely interested in a stock pool, in accordance with the custom of brokers dealing on the New York Stock Exchange, obtained a clearance loan of $400,000 from defendant bank on January 19, 1910. The pool haying collapsed, and the bank ascertaining that the brokers were in difficulties, the cashier demanded additional securities, which were thereupon deposited, which, with a deposit of $54,048.08, was received just prior to the brokers’ suspension. The clearance loan was charged to the brokers’ deposit account, which was credited with the amount of the deposit received, whereupon the account was closed, and a loan put through for the debit balance. Held that, though the deposit might have reached the bank before the brokers were absolutely insolvent, yet the bank knew of the firm’s possible insolvency, and that not only the deposit, but the transfer of the securities, constituted a “preference,” recoverable by the bankrupt’s trustee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 250-258; Dec. Dig. § 166.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5498, 5499; vol. 8, p. 7759.]</p> <p>2. Bankruptcy (§ 303*) — Evidence of Insolvency — -Books op Account.</p> <p>In an action by a bankrupt’s trustee to recover certain securities and a deposit delivered to a bank as a preference, the bankrupts’ books were admissible to show whether the bankrupts were insolvent at a particular time.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 458-462; Dec. Dig. § 303.*]</p> <p>3. Bankruptcy (§ 164*) — “Bank Account” — Indebtedness to Bank — “Payment.”</p> <p>Where a bank, to which the bankrupt was largely indebted on the day the bankrupt became insolvent, closed its account and credited the balance, including a deposit just made, on the bankrupt’s indebtedness to it, such deposit amounted to a payment pro tanto of the loan, and not a deposit to the bankrupt’s account, since a bank account contemplates the right of the depositor to draw against it.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 267-; Dee. Dig. § 164.*</p> <p>For other definitions, see Words and Phrases, vol. 1, p. 689; vol. 6, pp. 5247-5253; vol. 8, p. 7749.]</p>

Ill Bankruptcy. Action by Henry D. Hotchkiss, as trustee in bankruptcy of Henry S. Haskins, Henry Leverich, and Fannie G. Bath-rop. individually and as copartners trading under the name of Bath-rop, Haskins & Co., against the National City Bank of New York, to recover certain securities alleged to have been transferred to the bank as a preference. On application for confirmation of a master’s report.

<p>At Daw. Action by Grinnell Willis and others, doing business under the name of Grinnell Willis & Co., against the Glenwood Cotton Mills.</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings of Abraham Schwarz, to review the allowance of a claim on a note executed by the bankrupt to the Bong Island Painting & Decorating Company.</p>

<p>In Equity. Suit by the Pennsylvania Steel Company and another against the New York City Railway Company. On motion by counsel for the committee of contract creditors to instruct a receiver to pay liquidated demands, with a view of expediting as'far as possible the final distribution of the fund in the receiver’s hands.</p>

<p>Equity (§ 198*) — Ckoss-Bill—Leave to File.</p> <p>A cross-bill by a party to tbe suit, tendered contemporaneously with the answer, may be filed without leave of court.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 460-462; Dec. Dig. § 198.*]</p>

At Raw. Action by the Drovers’ Deposit National Bank against M. H. Tichenor on a guaranty. On demurrer to complaint. The-plaintiff, a national bank located at Chicago, sues to recover from the defendant $9,983.50, with interest from July 27, 1910, the equivalent of £2,050 sterling, alleged to be due on the following note: “£2,050.

<p>Food (§ 25*) — Infection—Duty to Inspect — Liability to Consumer.</p> <p>A packer, killing and selling pork to a retailer, to be by bim sold to a consumer, owes a direct duty to the latter to inspect the pork, to ascertain whether it is infected with trichina, or is otherwise unfit for food, and is' liable to the consumer for injuries sustained by failure to perform such duty.</p> <p>[Ed. Note. — For other cases, see Food, Cent. Dig. § 18; Dec. Dig. § 25.*]</p>

<p>In Equity. Suit by the Stamford Foundry Company against the Thatcher Furnace -Company. On application for a preliminary injunction.</p>

<p>1. Bankruptcy (§ 408*) — Assets—Concealment—Ownership or Property.</p> <p>• Where a bankrupt did business through a corporation, which was merely a form of business activity owned and controlled by him, and concealed property which belonged to himself, such concealment was sufficient to justify the denial of a discharge in bankruptcy, though such property was applicable first to the creditors of the corporation, and then to the debts of his personal creditors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 732-730, 759, 762, 763; Dec. Dig. § 408.*]</p> <p>2. Bankruptcy (§ 409*) — Discharge—Failure to Keep Books.</p> <p>Where a bankrupt did business by means of a corporation, which he absolutely owned and controlled, and knowingly failed to have necessary books kept by such corporation, from which Ms creditors could gain information as to his affairs, to which they were entitled, the fact that the corporation might be held for failure to comply with the Bankruptcy Act did not absolve the bankrupt from liability for failure to make Ms own activities plain by the hooks of the corporation, or by an independent set of books showing what the corporation was doing, and hence such failure to keep books constituted a valid objection to his discharge.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 739, 752-757: Dec. Dig. § 409.*]</p>

<p>In Equity. Suit by Nathan Straus against the Abrast Realty Company and another. On application for preliminary injunction.</p>

<p>Petition by Thomas Stack to be admitted as a citizen of the United States of America.</p>

<p>1.Public Lands (§ 13*) — Cutting Timber — Action—'Number of Logs— Proof.</p> <p>In an action by tbe United States to recover for tbe taking of logs from a public domain, tbe jury is confined to tbe evidence for tbe ascertainment of the number of logs cut and removed from the land; but, having found from the evidence that defendants or their agents cut and removed logs from the land, the jury were entitled to indulge every fair and reasonable inference supported by the evidence as to the extent 'of the cutting and taking in favor of the United States and against the defendants, and find such number of logs as they were reasonably satisfied, from all the evidence and reasonable inferences, were taken.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 1G-18; Dec. Dig. § 13.*]</p> <p>2.Public Lands (§ 13*) — Cutting Timber — Willful Trespass.</p> <p>Where defendants directed their agents and servants to cut timber in certain territory, without reference or warning as to lands of the United States in that locality, and such agents and servants proceeded to cut indiscriminately, without reference to land lines or ownership, with defendants’ knowledge, defendants’ removal of timber from the lands of the United States constituted a willful trespass, and the government was entitled to recover the highest market value of the logs at the place and time of suit, without allowing any credit for expenses of deadening, cutting, or running out the timber.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 16-18; Dee. Dig. § 13.*]</p> <p>3. Public Lands (§ 13*) — Cutting Timber — Innocent Trespass.</p> <p>Where defendants cautioned their agents and servants against entering or cutting and removing logs from land of the United States in the vicinity of other land from which they were-cutting timber, but, notwithstanding such warning, timber was cut from public lands, defendants were innocent trespassers, and liable to the government only for the value of the logs on the land where felled.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 16-18; Dec. Dig. § 13.*]</p> <p>4. Trespass (§ 67*) — Willful or Negligent Trespass — Innocent Mistake— Question for Jury.</p> <p>It is the duty of adjoining landowners or lessees to use ordinary care and diligence to ascertain the boundaries of the lands, and not to encroach on the lands of others in the same vicinity; and hence, in an action for trespass, whether the trespass was willful, or negligent, or through innocent mistake, is a question of fact for the Jury under all the circumstances.</p> <p>Hid. Note.- — For other cases, see Trespass, Cent. Dig. § 150; Dec. Dig. § 67.*]</p> <p>5. Evidence (§ 508*) — “Prepondekance oir Evidence.”</p> <p>“‘Preponderance of evidence” means that evidence which is most consistent with the truth as measured l>y the experience and judgment of the jury; that which accords best with reason and probability. The best test of the preponderance is where the jury believe, from all the evidence and the circumstances in the case, the truth lies.</p> <p>Illd. Note. — For other cases, see Evidence, Cent. Dig. §§ 2450-2452; Dee. Dig. $¡ 508.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 551.6-5518.]</p>

<p>In Error to the District Court of the United States for the District of New Jersey; John Rellstab, Judge.</p> <p>Action by Phebe A. Cash, as administratrix, against the Pennsylvania Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Specific Performance (§ 88*) — Right to Relief — Good Faith of Complainant.</p> <p>A party is not entitled in equity to specific performance of a contract, where lie has not only failed to perform terms and conditions which were essential parts' of the consideration, and on which its continuance was expressly made to depend, but did not intend to do so when the contract was made, but procured its execution by fraudulently misrepresenting his intention.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. § 226; Dec. Dig. § 88.*]</p> <p>2. Specific Performance (§ 17*) — Persons Entitled to Enforce — Contract Made by Another.</p> <p>A corporation, which owned certain patents and had granted licenses thereunder, afterward joined with another corporation, in settlement of litigation, in conveying all their patents to defendant, which was organized for the purpose, and which it was verbally agreed should issue new licenses to all licensees of the former owners in . good standing. Held, that such agreement was not made for the benefit of a licensee, and that such licensee could not maintain a suit to enforce its specific performance against the claim of the original licensor that it had forfeited its license and was not in good standing.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 38-46; Dec. Dig. § 17.*</p> <p>Persons entitled to enforce specific performance, see note to Lawyer V. Post, 47 C. C. A. 493.]</p>

Action at law by the Premo Specialty Manufacturing Company against the Jersey-Creme Company. Judgment for defendant, and plaintiff brings error. This was an action brought by plaintiff in error, a California corporation, in the superior court of Los Angeles county, Cal., to recover for goods, wares, and merchandise consisting of aseptic straw dispensers, alleged to have been sold and delivered f. o. 1>. at.

Young, Judge. Action by Martha Young, as administratrix of the estate of Peter B. Young, deceased, against the'Central Railroad Company of New Jersey. Judgment for plaintiff, and defendant brings error.

i Appeal from the District Court of the United States for the District of Massachusetts; Frederic Dodge, Judge. Suit in admiralty, in rem, by the Murray & Tregurtha Company ■ against an open gasoline launch; James R. Ely, claimant. Decree for libelant,, and claimant appeals.

Action at law by Springs & Co. against George S. Murphey. Judgment for plaintiffs, and defendant brings error. Springs & Co., cotton brokers of New York? sued George S. Murphey, of Augusta, Ga.; the declaration containing three counts.

<p>In Error to the District Court of the United States for the Northern District of Iowa; Henry T. Reed, Judge.</p> <p>Action by Margaret McCormick, as administratrix of John McCormick, deceased, against the Chicago Great Western Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Bankruptcy (§ 339*) — Findings or Referee — Sales—Delivery.</p> <p>A finding that the goods delivered under a contract of sale constituted “a good delivery” was a sufficient finding on an issue that the seller had waived its right to a prompt return of unmerchantable goods.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Gent. Dig. §§ 525, 526; Dec. Dig. § 3:59.*]</p> <p>2. Bankruptcy (§ 340*) — Claims for Goods Sold — Merchantable Quality —Evidence—Findings.</p> <p>Evidence held to sustain a referee’s finding that goods delivered under a contract of sale were merchantable and of the character purchased.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 527; Dec. Dig. § 340.*]</p> <p>3 Sales (§ 73*) — “Sale by Sample.”</p> <p>A “sale by sample” is not accomplished whenever a specimen of the thing under consideration is exhibited to the buyer or discussed during the progress of negotiations; but there must be a definite intention on the part of both buyer and seller that a definite article shall be the standard to which every delivery must conform.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 188; Dec. Dig. § 73.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6307, 6308.]</p> <p>4. Sales (§ 288*) — Merchantable Quality — Inspection.</p> <p>Where a bankrupt contracted to purchase cheap underwear from a claimant according to particular description, and with notice that the goods must necessarily be made from cheaper material than had been used in similar goods previously sold to him, because of a rise in the price of cotton, the bankrupt’s receipt and. retention of deliveries under the contract without any inspection or examination for weeks, and in some instances months, after their receipt, operated as a waiver of his right to return the goods for unmerehantableness.</p> <p>[lid. Note. — E’or other cases, see Sales, Cent. Dig. §§ 817-823; Dec. .Dig. § 288.*]</p>

Action by John E. Francis against Cramp & Co. to recover for injuries to plaintiff while in defendant’s service, by defendant’s alleged negligence. From an order dismissing the complaint, plaintiff brings error.

<p>Municipal CORPORATIONS (§ 253*) — -Lighting Contract — Construction— Breach — Declaration by Board op Public Improvements — Authority.</p> <p>Plaintiff city executed a contract with a lighting company to do the public lighting for 10 years; defendant surety company executing a bond to secure faithful performance of the contract. Section D of; the contract provided that the board of public improvements should decide all questions which might arise relative to the execution of the contract, and that its decisions should be final. Section F declared that the company. in good faith and wilhin 30 days after approval of the contract, should commence and thereafter regularly carry on preparatory work for carrying out the contract, with such force and in such manner as would secure the lighting on and after September 1, 1900; that the rate of progress of the work was an essential condition, and that if the board did not deem the progress sufficient it should proceed as provided in section M. which stipulated that, after probable cause for supposing that any condition, covenant, or agreement of the contract was not being carried out in good faith, tho board of public improvements should set a day, give notice, and conduct a hearing, and if it was then of the opinion that the lighting company was not proceeding in good faith it might, after notice and continued default for 10 days, declare a breach of contract and relet, etc. Bold, that, the question of the existence of probable cause for supposing that the contractor was not carrying out the contract in good faith as provided in section M was not for the conclusive determination of the board, but whether it was or not was an essential condition of fact precedent to action by the board, which was open to general inquiry in a court of Justice.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations,, Cent. Dig. § 695; Dec. Dig. § 253.*]</p>

<p>1. Brokers (§ 6*) — Relation to Client — Acts.</p> <p>Where defendant employed plaintiffs to purchase and sell grain for him on commission at various exchanges, plaintiffs having no interest in the purchases and sales other than as defendant’s brokers, their relation was not affected by the fact that in executing defendant’s orders plaintiffs assumed the position of principals toward those with whom they dealt.</p> <p>[Ed. Note. — Eor other cases, see Brokers, Cent. Dig. § 4; Dec. Dig. § 6.*]</p> <p>2. Brokers (§ 21*) — Employment—Purchase and Sale -op Grain — Exchanges.</p> <p>An order from a customer to a broker, to be executed on a board of trade, contemplates conformity to the rules and customs that prevail there.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 17; Dec. Dig. ' § 21.*]</p> <p>3. Gaming (§ 2*) — Purchase and Sale op Grain — Exchanges—Wiiat Law Governs.</p> <p>Where orders for purchases and sales on exchanges were made through brokers, the legality of the trarisactions was governed by the law of the state where the exchange was located.</p> <p>[Ed. Note. — For other cases, see Gaming, Cent. Dig. § 2; Dee. Dig. § 2.*]</p> <p>4. Gaming (§ 12*) — Purchases and Sales op Commodities por Future Delivery.</p> <p>In Illinois a contract of purchase or sale of a commodity for future delivery is void only when both parties intended it as a wager on the market movements, to be settled by payment of differences, while in Missouri the contract is void by statute if either party so intended.</p> <p>[Ed. Note. — For other eases, see Gaming, Cent. Dig. § 22; Dec. Dig. § 12.*</p> <p>Sales and purchases under agreements for settlement of differences between contract price and market price, as wagering contracts, see note to Ware v. Pearsons, 98 C. C. A. 368.]</p> <p>5. Gaming (§ 49*) — Purchase and Sale op Grain — Future Delivery.-</p> <p>The mere fact that no grain was actually delivered or received pursuant to purchases and sales thereof, but that the sales and purchases were set off against others according to the custom of exchanges, did not show that the transactions were illegal.</p> <p>[Ed. Note. — For other cases, see Gaming, Cent. Dig. §§ 100-102; Dee. Dig. § 49.*]</p> <p>6. GAMING (I W*) — G,UIUi'ISG TRANSACTION — PURCHASE AND SALE OF GRAIN —Illegality—Burden of Proof.</p> <p>Wlicrc contracts for tlie purchase and sale of grain on exchanges were fair on their face and presumptively lawful, regardless of the undisclosed intention of the defendant, the burden ivas on defendant to prove that the transactions were mere wagers on the fluctuations of the market.</p> <p>[Ed. Note. — Por other cases, see Gaming, Gent. Dig. §§ 100-102; Dec. Dig. § 49.*]</p> <p>7. Affeal and Error (£ 1050*) — Admission of Evidence — Prejudice.</p> <p>The admission of incompetent evidence is not prejudicial, where it added nothing of moment to the evidence already introduced on the same subject-.</p> <p>I Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4153-4100, 4166; Dec. Dig. § 1050.*]</p>

<p>In Error to the Circuit Court of the United States for the Southern District of New York; E. Henry Eacombe, Judge.</p> <p>Action by Gohen C. Arnold, as trustee of the Meriden Coal Company, against the Skeele Coal Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Master and Servant (§ 144*) — Injuries to Servant — Rules—Promulgation- — -Disuse.</p> <p>Where defendant, operating a lithographing plant, had promulgated a necessary rule prohibiting cleaning of presses until afternoon on Saturdays, when the power was shut off, and plaintiff, an employé, was injured while cleaning a press in violation of the rule, under orders of his pressman, by the latter causing the press to move when plaintiff was in a dangerous situation, and there was evidence that there had been such a continual infraction of the rule as to indicate nonenforcement, the promulgation of the rule was no defense to an action for the master’s negligence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 287; Dec. Dig. § 144.*]</p> <p>2. Master and Servant (§ 144*) — Injuries to Servant — Concurring Negligence.</p> <p>Concurring negligence of a pressman, who was plaintiff’s fellow servant, in starting a press while plaintiff was in a dangerous position, cleaning the same, at a time when such work was prohibited by rule, was no defense to the master’s liability for the injuries sustained, where it appeared that his own negligence in permitting the rule to be continually violated concurred to cause the injury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 287; Dec. Dig. § 144.*</p> <p>Concurrent negligence of master and fellow servant, see .note to Mau-pin v. Texas & P. Ry. Co., 40 C. C. A. 236.]</p>

<p>1. Contracts (§ 169*) — Construction—Attendant Circumstances.</p> <p>The court, in construing a contract, may consider it in the light of the attendant circumstances.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 752; Dee. Dig. § 169.*]</p> <p>2. Sales (§ 7*) — Contracts—What Constitutes.</p> <p>Plaintiff, a manufacturer of brooms and dealer in broom materials and supplies, offered its contract to defendant, a corporation engaged chiefly in the business of general broomcorn commission and storage, though dealing to some extent in broomcorn on its own account, for 50 cars of broomcorn “at not over $80 per ton, and commission of 85 per ton, f. o. b. cars from place of origin.” Defendant accepted the offer, completed by stating the car minimum. At defendant’s invitation, plaintiff’s manager went to defendant’s headquarters to buy broomcorn. During the negotiations a form of contract for the outright purchase from defendant of 50 car loads at market cost, but not exceeding $80 per ton, plus $5 per ton commission, was refected, and thereafter the offer was prepared and accepted. Held, that the offer and acceptance was not a contract of sale and purchase, but obligated defendant to go into the market and, if possible, buy for plaintiff, at not exceeding $S0 per ton, 50 cars of broomcorn at a commission of $5 per ton.</p> <p>[Ed. Note. — For other eases, see Sales, Cent. Dig. §§ 16, 17; Dec. Dig. § 7.*]</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York; Van Vechten Veeder, Judge.</p> <p>Information by the United States against Philip Coombes. Judgment for the United States, and defendant appeals.</p>

Alabama; Harry T. Toulmin, Judge. Action by William S. Lovell, as trustee in bankruptcy of Knight. Yancey & Co., and others, against Lathari & Co. From an order striking the answer and cross-bill of Knauth, Nachod & Kuhne, they appeal.

<p>Petition to Revise Order of the District Court of the United States for the Southern District of New York; Yearned Hand, Judge.</p> <p>In the matter of bankruptcy proceedings of the Weber Company. On petition by .Max Weber to revise an order adjudging him-in contempt for failure to comply with an order directing him to pay $7,000 to the trustee.</p>

<p>In Error to the District Court of the United States for the Western District of New York; John R. Hazel, Judge.</p> <p>Action by the United States against the Erie Railroad Company to recover a penalty for violation of the 28-hour law, on account of the alleged confinement of a shipment of four car loads of cattle for a period in excess of 36 hours in cars which did not provide space or opportunity for the animals to rest. Judgment for plaintiff (191 Eed. 941), and defendant brings error.</p>

Petition for Revision of Proceedings of the District Court of the United States for the Eastern District of New York; Van Vechten Veeder, Judge. In the matter of bankruptcy proceedings of Charles F. Warth.

<p>Bankruptcy (§ 177*) — Preferences—Recovery.</p> <p>A transfer of securities by a bankrupt to a creditor within four months prior to bankruptcy, and with notice of facts that would incite a man of ordinary prudence to inquire as to the insolvency of the debtor, was none the less a preference because it was made pursuant to a prior agreement existing for a period antedating the four months prior to bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 261-263; Dec. Dig. § 177.*]</p>

Suit in equity by the Motion Picture Patents Company against the Independent Moving Pictures Company of America. Decree for defendant, and complainant appeals. The patent in question, No. 707,934, was granted to Woodville Lath-am August 26, 1902, for new and useful improvements in projecting kinetoscopes.

<p>Appeal from the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge.</p> <p>Suit in equity by Frank M. Fritsch against the Theo. J. Ely Manufacturing Company. Decree for complainant, and defendant appeals.</p>

In Equity. Suit by the Ruud Manufacturing Company against the Pittsburg Water Heater Company for infringement of the Ruud patent, No. 903,007, for a water heater. - On final hearing.

: In Equity. Suit by A. R. Mosler & Co. against John Lurie, trading as the Auto Supply Company, for infringement of letters patent No: 612,701, for an igniter for gas, oil, or vapor engines, granted to Frank W. Canfield October 18, 1898. On final hearing.

In Equity. Suit by the Ruud Manufacturing Company against the Pittsburg Water Heater Company for infringement of the Ruud patents, Nos. 761,409 and 875,218, for gas burners. On final hearing.

<p>Patents (§ 328*) — Invention—Pulverizer.</p> <p>The Williams patent, No. 939,775, for an improvement in pulverizers, is not so clearly invalid on its face for lack of invention as to warrant its being: so declared on demurrer.</p>

<p>1.States (§ 122*) — Collection and Custody op B’uniis — Constkuctiox of Kansas Statute.</p> <p>Prior to 1891, the statutes of Kansas prohibited the State Treasurer from receiving in payment of claims or dues to the state anything except specie, treasury or national bank notes, or postal money orders, and made it embezzlement for him to deposit state funds in any bank. By Laws 1891, c. 41, §§ 1, 2 (Gen. St. 1901, §§ 7629, 7030), county treasurers were authorized to make settlements with the State Treasurer, among other ways, by certificates of deposit or drafts on banks. The act further authorized the State Treasurer, with the advice and approval of the executive council, to designate one or more banks in Topeka as a depository for the collection of any drafts, checks, or certificates of deposit that might come into his hands on account of any claim due the state, and required a bank so designated to give bond for the prompt collection of all drafts, checks, and certificates of deposit that might be delivered to it by the treasurer for collection and for the safe-keeping and prompt payment of the proceeds on the Treasurer’s order. Held, that such statute, while an amendment of the revenue law, could not he so narrowly construed as to make it unlawful for the Treasurer to dejxisit for collection drafts or checks which he received for payments due the state from others than county treasurers, but that, while he could not be compelled to accept such paper, he might lawfully receive it and deposit it for co!-lbetion.</p> <p>[Ed. Note. — For other cases, see States, Cent. Dig. § 121; Dee. Dig. § 122.*J</p> <p>2. SuisBocrATtoN (§ 2*) — Relative Liabilities op Pasties as to Debt Dis-CIIABÚED.</p> <p>When it is sought to exercise the right of subrogation, something more must be shown than that defendant could have been compelled by the principal creditor to pay to him the debt which complainant has paid. It must be further shown that as between complainant and defendant it is the latter, and not the former, who in equity should bear the loss.</p> <p>[Ed. Note. — For other cases, see Subrogation, Cent. Dig. § 3; Dec. Dig. § 2.*]</p> <p>3. Subrogation (§ 2*) — Relative Liabilities op Parties as to Debt Discharged — Sureties pok Different Principals.</p> <p>Defendant was surety on the bond of the State Treasurer of Kansas, conditioned that he should faithfully discharge his duties and account for and pay over all moneys coming into his hands by virtue of lfis office. Complainant was surety on the bond of a depository bank, with which the Treasurer was authorized to deposit drafts, etc., for collection, conditioned that it should faithfully keep and pay over on order of the Treasurer the proceeds of all collections. The bank failed, and complainant was compelled to pay to the state a balance due from the bank on account of such collections. Complainant claimed that some of the paper so collected was illegally deposited by the Treasurer. Held that, conceding such claim as between (lie two sureties, both of which were innocent, the loss must fall on the one whose principal’s fault was the proximate cause of such loss, and that, since the illegal act of the Treasurer would have resulted in no loss, but for the subsequent default of the bank, such default was the proximate cause, and, while complainant might have recovered from the treasurer, it was subrogated to no equity to recover over from defendant.</p> <p>[Ed. Note. — For other cases, see Subrogation, Cent. Dig. § 3; Dec. Dig. § 2.*</p> <p>Nature and theory of right of subrogation, see note to Merchants’ & Miners’ Transp. Co. v. Iioblnson-Baxter-Dissosway Towing & Transp. Co., 113 C. C. A. 434.]</p>

<p>In Equity. Suit by O. H. Baum, personally and as trustee for H. B. Holt, H. M. Maple, Isabel C. Maple, H. M. Daugherty, and E. E. Roudebush against Horace C. Eongwell. On demurrer to bill.</p>

In the matter of John H. Riehl, bankrupt. On review of order of referee denying claim of priority of the Second National Bank of Baltimore in the proceeds of mortgaged property.

<p>BANKRURTCY (§ 176*)-CORPORATIONS-SALE OF ASSETS-RlOIITS OF CREDITORS.</p> <p>K. and wife, dominating ¡a bankrupt corporation which was engaged in performing roofing contracts, agreed to sell to II. a half interest in the ■ property and contracts of the corporation for $1,500, of which $822.91 was to be paid in cash, $500 represented by a note, and the balance to he paid on or before January 1, 1911. The business was unsuccessful, whereupon an attorney was consulted and a second corporation formed; H. contributing the property purchased in the old corporation, while K. and wife put in the remaining half of the property of the old company, and the stock of the new company was divided between them. The new company succeeded to the contracts of the old corporation without payment, and proceeded to obtain new business. Held, that the sale of the assets of the old company to H. was illegal on the part of the vendors against creditors, and that IC. and wife were liable to its trustee in bankruptcy for the cash received as part of the purchase price therefor, and also for one-half the cash value for which they received stock in the new company.</p> <p>[Ed. Note. — -For other cases, see Bankruptcy, Gent. Dig. §§ 249, 251; Dec. Dig. § 176.*]</p>

In .Error to the District Court of the United States for the Eastern District of Pennsylvania; James B. Holland, Judge. Action by the Preston Coal & Improvement Company against the Raven Run Coal Company. Judgment for defendant, and plaintiff brings error.

S. Bean, Judge. Supplemental bill in equity by the Pacific Live Stock Company against W. D. Hanley, the William Hanley Company, H. C. Levens, and others. From the decree, complainant appeals. The respective parties to this appeal are not agreed as respects the .scope and purpose of the bill filed in the court below by the complainant, which is the appellant here.

Suit in equity by the Pacific Dive Stock Company against the Silvies River Irrigation Company and the Harney Valley Improvement Company. From the decree, complainant appeals. The pleadings are fairly stated by counsel for appellant.

Pollock, Judge. D. S. Naftzger was convicted of receiving stamps, knowing the same to have been stolen, and he brings error. I,. S. Naftzger was indicted for receiving and converting to his use property of the United States, knowing that the same had been stolen.

Maxey, Judge. Suit in equity by Tilomas H. Hubbard and others against the Galveston. Harrisburg & San Antonio Railway Company, the Southern Pacific Company, and others. Decree for defendants, and complainants appeal.

<p>In Error to the District Court of the United States for the District of Massachusetts; Frederic Dodge, Judge.</p> <p>Action by the Continental & Commercial National Bank of Chicago against John C. Cobb. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Indians (§ 10*) — Oil and Gas Leases — Validity ok Sublease.</p> <p>A contract by which a lessee in an Indian oil and gas lease parted with the management and control of operations thereunder to another, who was to conduct such operations at his own expense and risk and to have a beneficial interest in the production, is a transfer of an interest in the lease, within the regulations prescribed by the Secretary of the Interior and embodied in such lease, providing that no sublease, assignment, or transfer thereof, or of any interest therein, could be made without the written consent of the lessor and the Secretary first obtained, and without such consent the contract is void.</p> <p>I Ed. Note. — For other cases, see Indians, Cent. Dig. § 45; Dec. Dig. § 16.*]</p> <p>2. Specific Performance (§ 55*) — Contracts Enforceable — Agreements' Against Public Policy.</p> <p>A lessee in an Indian oil and gas lease, which had not been approved by the Secretary of the Interior, as was essential to its) validity, entered into a contract by which he transferred a beneficial interest therein to another, contrary to Its provisions and to the regulations prescribed by the Secretary. Fearing that such contract would prevent the approval of the lease, it was canceled by mutual consent under an agreement that, after such approval was secured, it should be renewed in the name of some third person, but for the benefit of the same grantee. Meld, that such agreement, being Cor the sole purpose of deceiving a public officer in tlio discharge of his duties, was contrary to public policy and void, and that a court of equity would not specifically enforce it, or grant other relief io a party thereto.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 173-176; Dec. Dig. § 55.*]</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Oklahoma.</p> <p>Suit in equity by Theodore N. Barnsdall against the Delaware Indian Oil Company. Decree for defendant, and complainant appeals.</p>

Bean, Judge. Suit in admiralty by Erwin Bansback and others against the schooner W. H. Talbot, George E. Billings, claimant, to recover compensation for short allowance and bad quality of food furnished libelants as seamen during a voyage. Decree for libelants, and claimant appeals.

<p>1. Contbaots (§ 10*) — Mutuality of Obligation.</p> <p>Where a seller agrees to deliver such quantities of any commodity as the buyer may choose to order, but the buyer does not agree to order any quantity thereof, the contract is void Cor want of mutuality.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 21-10; Dec. Dig. § 10.*)</p> <p>2. Contracts (§ 10*) — Mutuality.</p> <p>Where a buyer has an established business, the contract by which the seller agrees to furnish the buyer with such supplies as may be needed l>y the buyer during a specified period is not objectionable for want of mutuality; both parties being bound, the seller to furnish and the buyer to receive what is needed.</p> <p>fEd. Note. — For other cases, see Contracts, Cent. Dig. §§ 21 10; Dec. Dig. § 10.*</p> <p>Mutuality in contract, see note to American Cotton Oil Co. v. Kirk. 15 C. C. A. 513.j</p> <p>3. Salks (§ 60*) — Construction—Surrounding Circumstances.</p> <p>Where a seller agreed to furnish a 'buyer, and the buyer agreed to take, between 175,000 and 225,000 pounds of beef trimmings for use in his business, and the contract also obligated the seller 1o take care of the buyer’s needs during the current year, the court, in construing the contract, was not limited to the language employed, but was entitled to look to the subject-matter, the course of dealing between the parties, and all the relevant surrounding circumstances.</p> <p>[Ed. Note. — For other cases, sec Sales, Cent. Dig. § ICO; Dec. Dig. § 60.*]</p> <p>4. Sales (§ 71*) — Contract—Construction—“Buyer’s Needs Tins Year.”</p> <p>Plaintiff owned and operated a cannery for the manufacture of canned goods in which beef was used, having iireviously for four or five years purchased beef from defendant, a packer. It had not been plaintiff’s custom to run its factory at full capacity, which was about 10,000 pounds a day, without regard to orders received, but rather to manufacture goods to fill orders received or sales made, and to keep on hand a sufficient supply to fill orders that would probably be received. Under these circumstances plaintiff agreed to purchase, and defendant agreed to sell to plaintiff, 175,000 to 225,000 pounds of beef trimmings, to be delivered at the seller’s option during die year: defendant agreeing to “take care of the buyer’s ueeds Ibis year.” Held, that the clause quoted did not obligate defendant to furnish a sufficient quantity to operate plaintiff’s plant at full capacity for the year, but only obligated it to furnish a sufficient quantity to operate the factory in accordance with iffaintiff’s customary operation, and to cover the amount that plaintiff’s sales might exceed the máximum quantity as named hi the contract, etc.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 189-196; Dec. Dig. § 71.*]</p>

<p>In Error to the Circuit Court of the United States for the Western Division of the Northern District of Ohio; John M. Killits, Judge.</p> <p>Action by James Hales, as administrator of the estate of James K. Myers, against the Michigan Central Railroad Company. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Habeas Corpus (§ 30*) — Deportation Proceedings — Hearing—Irregularities.</p> <p>Irregularities in an order for tbe arrest of an alien in deportation proceedings do not affect tbe status of tbe alien beld on a warrant of deportation áfter a fair trial, nor entitle bim to relief on babeas corpus.</p> <p>[Ed. Note. — Por other cases, see Habeas Corpus, Cent. Dig. § 25; Dec. Dig. § 30.*]</p> <p>2. Aliens (§ 54*) — Execution—Guilty of Criminal Offense — Admissions.</p> <p>Under tbe Immigration Act (Act Feb. 20, 1907, c. 1134, 34 Stat. 898 [U. S. Comp. St. Supp. 1911, p. 499]),, providing for tbe exclusion of persons wbo bave been convicted of, or admit having committed, a- crime involving moral turpitude, evidence of the commission of such an offense may be furnished by admissions of tbe alien subsequent, as well as prior, to entry.</p> <p>[Ed. Note. — For other cases, see' Aliens, Cent. Dig. § 112; Dee. Dig. § 54.*]</p> <p>3. Habeas Oorfus (§ 23*) — Exclusion of Immigrant — Administration of Law — Conclusions of Immigration Officers — Review.</p> <p>While Congress has power to commit to executive officers tbe enforcement of tbe laws and regulations relating to tbe admission and exclusion of aliens, and declare that the conclusions of such officers in determining tbe right of an alien to enter shall be conclusive, a deportation order may be invalid, and tbe alien entitled to discharge on habeas corpus, if it is unsupported by any evidence, or is tbe result of errors of law.</p> <p>[Ed. Note. — -For other cases, see Habeas Corpus, Cent. Dig. § 17; Dec. Dig. § 23.*]</p>

Hazel, Judge. Suit by Robert L. Warner against Sidney B. Wood and another for specific performance of contracts alleged to have been entered into between complainant and defendant Wood with reference to the disposition of certain mining properties and an interest in an individual contract with one Quenner. Judgment for defendants, and plaintiff appeals.

the United States for the Southern District of Georgia; Emory Speer, Judge. Iii the matter of bankruptcy proceedings of Cotton & Preston, E. S. Cotton, and E. F. Preston, bankrupts. From a final decree granting a discharge to the bankrupts as a firm and individually, Ragan, Malone & Co., objectors, appeal. The appellees, bankrupts, filed a petition for discharge.

<p>Appeal from the Circuit Court of the United States for the Western District of Missouri; Smith McPherson, Judge.</p> <p>Suit in equity by the Assets Investment Company against J. P. Hol-lingshead and others. Decree for defendants, and complainant appeals.</p>

McCall, Judge. Action at law by Gilman P. Smith, administrator of the estate of Claude H. Beever, deceased, against the Illinois Central Railroad Company and the Yazoo & Mississippi Valley Railroad Company. Judgment for defendants, and plaintiff brings error.

Hough, Judge. Suit in admiralty by Isaac R. Robinson against the steam tug James McDonough; Henry H. Lee, claimant. Decree for respondent, and libelant appeals. This is an appeal from a decree dismissing a libel to recover wharf-age, for what is alleged to be the use and occupation of libelant’s bulkhead at the foot of Court street, in the borough of Brooklyn, New York City.

<p>1. Trade-Masks and Tkade-Names (§ 48*) — Protection—Statutes—Cosr-stbdction — •“Labels, Masks, os Names.”</p> <p>Penal Law N. Y. (Consol. Laws 1909, c. 40) § 2354, subd. 6, provides that a person who knowingly sells, offers, or exposes for sale any goods which are represented in any manner, by word or deed, to be the manufacture, packing, bottling, boxing, or product of any jierson, firm, or corporation other than himself, unless such goods are contained in the original package, box, or bottle and under the labels, marks, or names placed thereon by the manufacturer, is guilty of a misdemeanor. Held, that the words “labels, marks, or names,” which the manufacturer is entitled to use on his packages, are trade-marks in which the manufacturer has a special right, or, if not technical trade-marks, those which are entitled to pro-teetion under similar principles, and do not include mere identifying numbers placed on the containers of the goods.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 56; Dec. Dig. § 48.*</p> <p>Arbitrary, descriptive, or fictitious character of trade-marks and trade-names, see note to Searle & Hereth Co. v. Warner, 50 C. O. A. 323.]</p> <p>2. Trade-Marks and Trade-Names (§ 95*) — Identifying Marks — Obliteration — Injunction.</p> <p>Complainant was not entitled to an injunction restraining defendants from selling complainant’s manufactured'goods, except in original packages from ‘ which identifying numbers had not been erased, where the only proof was that defendants sold a number of boxes of complainant’s goods to an uncertain, number of retailers, and that complainant’s identifying marks had been obliterated, without anything to show that defendants erased the marks, or' that they were erased while in defendants’ possession, or to negative the fact that they were erased for a legitimate purpose, or that substantial injury was threatened.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 108;. Dec. Dig. § 95.*]</p>

This cause comes here upon an appeal taken by Felix Hessberg from an order of the District Court for the Southern District of New York, which adjudged that certain loans made by him to Joseph Mesibovsky, the bankrupt, were usurious.

<p>1. Courts (§ 366*) — -Federal Courts — Rules of Decision — Decision- of State Court — State Statute.</p> <p>A decision of a state court of last resort construing a state statute is binding on the federal courts sitting in that state.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 954-957, 960-968; Dec. Dig. § 366.*]</p> <p>2. Courts (§ 367*) — Federal Courts — Rules of Decision — Real Property Daw.</p> <p>The law of a state as to real property within its borders, as announced by the highest judicial tribunal of the state, will be followed by federal courts sitting therein.</p> <p>[Ed. Note. — For other cases, see Courts, Cent Dig. §§ 958, 959; Dec. Dig. § 367.*]</p> <p>3. Courts (§ 367*) — Federal Courts — Real Estate Daw — State Court De- . cisión — Comity—“Park.”</p> <p>Plaintiff’s father filed a plat of a city addition containing a block designated “Ehmen’s Park.” In an action in a state court, it was held by the state Supreme Court that the term “park,” as used in the plat, meant a tract of ground set apart for purposes of public ornament or recreation, and that the annexation of the name in the plat in question did not prevent the plat from operating as a statutory dedication of the block to public use. Held, that such decision, even though not conclusive on the federal courts, being based on persuasive reasoning, would be followed under the doctrine of comity.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 958, 959; Dec. Dig. § 367.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5176, 5177; vol. 8, p. 7745.</p> <p>Conclusiveness of judgment between federal and state courts, see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. C. A. 478; Union & Planters’ Bank of Memphis v. City of Memphis, 49 G. C. A. 468.]</p> <p>4. Appeal and Error (§ 171*) — Questions Not Raised at Trial — Theory of Cause.</p> <p>Where, in a suit to recover certain real property, the pleadings proceeded on the assumption of a valid platting of the land as part of a city addition, plaintiff was not entitled to claim for the first time on appeal that the plat was void.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1053-1069, 1161-1165; Dec. Dig. § 171.*-]</p>

Dyer, Judge. Proceedings by Alexander H. Handlan to establish a claim against the Columbia Biscuit Company, a bankrupt; Robert E. Walker being trustee. From an order rejecting the claim, claimant appeals.

<p>Appeal from the District Court of the United States for the Middle District of Alabama; Thomas G. Jones, Judge.</p> <p>Action by the Chicago Title & Trust Company against the City of Columbia. Judgment for plaintiff, and defendant appeals.</p>

Adams, Judge. Suit in admiralty by Eester W. Beasley, owner of the lighter Lizzie D. Beasley, against the steam tug Patrick McGuirl; Patrick McGuirl, claimant. Decree for respondent, and libelant appeals.

Putnam. Judge. Suit by the Automatic Weighing Machine Company against the Pneumatic Scale Corporation, Limited. Judgment for complainant, and defendant appeals. On motion for bond on stay of injunction pending appeal.

<p>Appeal from the Circuit Court of the United States for the District of Maine; William L. .Putnam, Judge.</p> <p>Suit in equity by the Automatic Weighing Machine Company against the Pneumatic Scale Corporation. Limited. Decree for complainant, and defendant appeals.</p>

<p>Patents (§ 328*) — Ins’kikgemekt—Electric Heater.</p> <p>The Morforcl patent, No. 490,034, for ail electric heater, in which the heating coils are inbcdded in a coating of adhesive insulating enamel, or its equivalent, applied to the upper surface of the metal base, cannot be construed to cover glass as an equivalent, in view of tlie express disclaimer of such material by an amendment of tlie application while pending in the Patent Office, to avoid references cited by the examiner. As so construed, held not infringed.</p>

<p>Patents (§ 328*) — Validity and Infringement — Electric Meters.</p> <p>The Davis and Conrad patent, No. 608,842, for improvements in electric meters and motors, claims 9 and 10, as limited by the prior art, held not infringed.</p>

<p>JPatekts (§ 828*) — Validity and" Infringement — Eyeglasses.</p> <p>The Bonschur patent, No. 787,327, for eyeglasses, construed, and held not infringed.</p>

Henry Lacombe, Judge. Suit in equity by the National Electric Signaling Company against the Telefuuken Wireless Telegraph Company of the United States and others. From an order granting a preliminary injunction, defendants appeal.

<p>Patents (§ 259*) — Contributory Infringement — License Contracts.</p> <p>A maker of caps or seals for bottles adapted to be applied by patented machines sold by complainant under license contracts binding the purchasers to use thereon only caps or seals made by complainant, who sold his product to owners of such machines, on which they were used, with knowledge that there were practically no other machines on which they could be used, was chargeable with contributory infringement of the machine patent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 400-402; Dec. Dig. § 2.1!).*</p> <p>Contributory infringement of patents, see notes to Edison Electric !L>. Co. v. Peninsular Light, P. & H. Co., 43 C. C. A. 480; iEolian Go. y. Harry H. Juelg Co., 86 C. C. A. 206.]</p>

On demurrer to indictment against the Sterling Salt Company and others for fraudulently obtaining the shipment of certain salt at an improper rate.

<p>1. Carriers (§ 218*) — Transportation or Live Stock — Limited Liability— Valuation Contract.</p> <p>A contract lor the transportation oí animals, limiting the carrier’s liability, in ease of loss by the carrier’s negligence or otherwise, to a specified valuation, fairly made and in consideration of a reduced freight rate, will be upheld.</p> <p>[Ed. Note.- — For other cases, see Carriers, Gent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. § 218.*]</p> <p>2. Carriers (§ 227*) — Transportation of Animals — Contract 'for Care-During Shipment.</p> <p>In an action against a carrier for injuries to a shipment of sheep, a provision of the shipping contract that, in consideration of a reduced freight rate, the shipper assumed the duty to load, unload, reload, feed, water, tend, and care for the sheep at his own risk during the entire transportation, was valid; and an averment that all the injuries sus-tamed by the sheep were due to plaintiff's carelessness in and about sucli matters, and that proper facilities were provided by defendant, stated a defense.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 953-956; Dec. Dig. § 227.*]</p> <p>3. Carbiers (§ 227*) — Live Stock — Actions—Answer—Demurrer.</p> <p>Where a complaint for injuries to certain sheep while being transported by defendant did not proceed on any failure of defendant with respect to loading or unloading facilities, an alleged defense, bearing on the condition of defendant’s facilities for unloading, etc., was demurra-ble, as not germane.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 953-956; Dec. Dig. § 227.*]</p> <p>4. Carriers (§ 227*) — Transportation of Animals — Injuries—Defenses— Limited Liability — Contract.</p> <p>In an action for injuries to certain sheep while being transported over defendant’s road, a defense that any loss or damage was due to causes beyond defendant’s control, shrinkage in weight, changes in weather, heat, cold, or causes not resulting from defendant’s negligence, and that for injuries so caused defendant was not liable under a limited liability contract, executed in pursuance of a reduced rate, was not demurrable.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 953-956; Dec. Dig. § 227.*]</p> <p>5. Carriers (§ 216*) — Transportation of Animals — Injuries—Defenses.</p> <p>A defense that the injuries to plaintiff’s sheep in transit were due to the inherent nature, propensities, habits, disposition, and condition of the sheep, and not to any negligence of defendant, or its agents or servants, is sufficient.</p> <p>[Ed- Note. — For other cases, see Carriers, Cent. Dig. § 929; Dec. Dig. § 216.*]</p> <p>6. Carriers (§ 35*) — Transportation of Live Stock — Twenty-Eight Hour Law.</p> <p>Under the Twenty-Eight Hour Law (Act June 29, 1906, c. 3594, 34 Stat. 607 [U. S. Comp. St. Supp. 1911, p. 1341]), prohibiting the confinement of animals transported in interstate commerce for a period longer' than 2S consecutive hours, save only that, by special agreement and written request of the owner, the time may be extended to 36 hours, an agreement between a carrier and owner to confine the animals for a period longer than 36 hours is void.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. § 94; Dec. Dig. § 35.*</p> <p>Liability of carrier for failure to feed, water, and rest live stock, and for violation of Twenty-Eight Hour Law, see note .to St. Joseph Stockyards Co. v. United States, 110 C. C. A. 435.]</p>

In Equity. Suit by the Continental & Commercial Trust & Savings Bank against the Allis-Chalmers Company and others. On demurrers to petitions for leave to intervene by Nathan Eiseman and Timlin & Gold.

In Equity. Action by the Baer Bros. Mercar tile Company against the Denver & Rio.Grande Railroad Company to enforce payment of reparation awarded plaintiff by orders of the Interstate Commerce Commission. ' On demurrer to complaint.

<p>1. Habeas Coreus (§ 59*) — Right to Writ — Application—Determination on Merits.</p> <p>Right of a petitioner to a writ of habeas corpus may be determined on the merits on a hearing on the application.</p> <p>[Ed. Note.- — For other cases, see Habeas Corpus, Cent. Dig. § 55; Dee. Dig. § 59.*]</p> <p>2. Post Office (§ 35*) — Misuse of Mails — Scheme to Defraud — -Statutes.</p> <p>The essential elements of the offense denounced by Rev. St. § 5189 (U. S. Comp. St. 1901, p. 3696), prohibiting the use of the mails with intent to further a scheme to defraud, are that the persons charged must have devised a scheme to defraud; that they must have intended to effect such scheme by opening correspondence with some other person through the post office, or to incite such other person to open communication with them; and that, in carrying out such scheme, the persons accused must either have deposited a letter or package in the post office, or taken or received one therefrom. But Or. Code, § 215 (Act March 4, 1909, c. 321, 35 Stat. 1130 [U. S. Comp. St. Supp. 1911, p. 1653]) denounces a broader offense than section 5480; it being only necessary to a conviction for violating section 215 that the scheme to defraud was devised, or intended to be devised, and subsequently a letter placed in the post office for the purpose of executing such scheme or artifice, or attempting to do so — it being unnecessary that the scheme or device contemplated the use of the post office establishment.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. § 55; Dec. Dig. ¡ 35.*</p> <p>Nonmailable matter, see notes to Timmons v. United States, 30 O. 0. A. 79; McCarthy y. United States, 110 C. O. A. 548.]</p> <p>3. Conspiracy (§ 43*) — Miso sic op Mails — 'Scheme to Defraud — -Indictment.</p> <p>An indictment for conspiracy to use the post office establishment in furtherance of a scheme to defraud alleged that defendant and certain others conspired and devised a scheme to defraud divers persons to the grand jury unknown, to be effected through and by means of the post office establishment, which scheme and artifice to defraud was then described to consist of an arrangement by which defendants, through a corporation, intended to purchase lumber through the post office establishment from manufacturers, with intent not to pay for the same, and in carrying out such scheme deposited a letter in the post office, which was set out, etc. Hold, that such indictment sufficiently charged that the carrying out of the scheme contemplated the nse of the post office establishment; and therefore charged a conspiracy to commit the offense denounced by Rev. St. § 5480 (U. S. Comp. St. 1901, p. 369(5), prohibiting the use of the post office establishment in furtherance of a scheme to defraud, etc.</p> <p>[Ed. Note.--For other cases, see Conspiracy, Cent. Dig. §§ 79, 80, 81-99; Dec. Dig. § 43.*]</p> <p>4. Indictment and Information (§ 119*) — Surplusage—Designation of Statute.</p> <p>Whore an indictment charged a conspiracy to use the post office establishment in furtherance of a scheme to defraud, in violation of Rev. St. § 5480 (U. S. Comp. St. 1901, p. 3096), it was not fatally defective because it alleged that the use of the post office establishment was in violation of Cr. Code, § 215 (Act March 4, 1909, c. 321, 35 Stat. 1130 [U. S. Comp. St. Snpp. 1911, p. 1053]), which was not in force at the time the offense was committed.</p> <p>[Ed. Note.- — For other eases, see Indictment and Information, Coni. Dig. §§ 311-314; Dee. Dig. § 119.*]</p>

In Admiralty. Suit by William R. Printz, master of the barge William H. Conner, and H. N. Hartwell & Son, Incorporated, owner of her cargo, against the steam lug M. E. Luckenbach (Edgar E. Luck-enbach, estate of Lewis Luckenbach, and estate of Edward Luck-enbach, claimants) and the schooner Hugh Kelly, impleaded (Elisha H. Weaver, claimant).

<p>1. Sales (§ 405*) — Conditional Sales — Filing.</p> <p>The rule as to the filing of conditional sales in Ohio is the same as that provided for the filing of chattel mortgages by Gen. Code, §§ 8560-8502, 8568, 8569.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 1353; Dec. Dig. § 465.*]</p> <p>2. -PARTNERSHIP (§ 63*)-NATURE OP FIRM-RESIDENCE.</p> <p>Notwithstanding Gen. Code Ohio, § 11,260, providing that a partnership may be sued in its partnership name, without alleging or proving the names of the individuals constituting the firm, a ^partnership is not an entity, and cannot have a residence different from that of the partners composing it.</p> <p>[Ed. Note. — For other eases, see Partnership, Cent. Dig. § 93; Dec. Dig. § 63.*]</p> <p>,3,. Partnership (§ 173*) — Conditional Sales — Execution by Firm — Effect.</p> <p>A conditional sale contract made by a partnership in the firm name is the individual act of each of the partners.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 304, 305; Dee. Dig. § 173.*</p> <p>What constitutes a contract of conditional sale, see note to Dunlop v. Mercer, 86 C. C. A. 448.]</p> <p>4. Sales (§ 465*) — Conditional Sales — Partnership—Filing.</p> <p>Gen. Code Ohio, § 8568, provides that a contract of conditional sale, ■to be valid against bona fide purchasers and mortgagors, shall be deposited with the county recorder of the county where the person signing the instrument resides at the time of the execution, if a resident of the state. Held that, where a contract of conditional sale was executed by the members of a firm, who resided in different counties, a filing in the county in which one of the partners resided and in which the firm’s principal place of business was located was insufficient, without additional filing in the county where the other partner resided.</p> <p>LEd. Note. — For other cases, see Sales, Cent. Dig. § 1353; Dec. Dig. § 465.*]</p> <p>5. Sales (§ 465*) — Conditional Sales — Filing—Removal of Property.</p> <p>Where a contract of conditional sale'is properly filed in conformity with the Ohio law, the temporary removal of the property to another state will not defeat the seller’s lien or right to enforce the contract.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 1353; Dee. Dig. § 465.*]</p> <p>6. Sales (§ 451*) — Conditional Sales — Enforcement—What Daw Governs.</p> <p>Where a buyer of certain construction cars under a conditional sale contract temporarily removed them to Indiana, but the seller did not .seek any relief under .his contract in that state, a federal court sitting in Ohio would not apply the Indiana law in determining the .seller’s rights as against the buyer’s .creditors in insolvency proceedings.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 1323; Dee. Dig. § 451.*]</p> <p>7. Sales (§ 451*)- — Conditional Sales — What Daw Governs.</p> <p>Defendant purchased certain construction cars for intervener pursuant to a conditional contract of sale, which, with the notes for the price, was executed in Illinois. The contract recited that defendant was an Ohio partnership. It was verified as required by the Ohio statute, and was imperfectly filed in that state. The parties contemplated that the cars should be removed from place to place as the exigencies of defendant’s business required, and that directions for such removal should' emanate from defendant’s principal office in Ohio, and that when not in use they should be returned there. Hold, that, in proceedings by the seller to recover the property against the buyer’s receiver in insolvency proceedings in Ohio, the eonrt would apply the Ohio law, raider the rule that the liability of property to be sold under legal process issuing from the courts sitting in the state where the property is located must be determined by the law of such state.</p> <p>LEd. Note. — For other cases, see Sales, Cent. Dig. § 1323; Dec. Dig. § 451.*]</p> <p>8. Courts (§ 872*) — Federal Courts — State Court Decisions — G'onclusiveness — Chattel Mortgages — Conditional Sales.</p> <p>There being so much of a local nature entering into conditional sale contracts and chattel mortgages, a federal court will accept the settled law of each state as decisive in respect to any case with reference to such contracts arising therein.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§' 977-979; Dec. Dig. § 372.*</p> <p>Conelusiveness of judgment between federal and state courts, see notes to Kansas City, Ft. S. & M. It. Co. v. Morgan. 21 C. C. A. 478; Union & Planters’ Bank v. City of Memphis, 49 C. C. A. 468.]</p>

In Equity. Suit by the State Bank of Chicago against the La Crosse Water Power Company to foreclose certain mortgages, in which Clement C. Smith was appointed .receiver. Cross-bill by the receiver against the Jones Lumber & Mercantile Company, the City of Black River Falls, and others to restrain the prosecution of tort actions in the state court, and to compel proof of the tort claims as claims against the funds arising in the foreclosure proceedings.

<p>1. Carriers (§ 35*) — Interstate Commerce — Rates — Filed Tariff — Enforcement — Contract.</p> <p>Since the Interstate Commerce Act (Act Feb. 4, 1887, c. 194, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]), endowed the Interstate Commerce Commission with plenary administrative power to supervise freight tariff's, and imposed on it the duty to annul any tariffs in contravention of the act, and generally to enforce its provisions, requiring shippers seeking reparation predicated on the unreasonableness of a published rate to primarily invoke redress through the Commission, which alone was vested with power to entertain original proceedings for the alteration of an established schedule, a filed rate on sugar, providing for allowances for carting from refinery to cars, did not constitute a contract between the carriers and the shippers which would survive a determination by the Commission, in other proceedings, that it constituted a rebate, and requiring the carriers to desist from making the same.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 94;- Dec. Dig. § 35*</p> <p>What constitutes an unlawful preference or discrimination by a carrier under interstate commerce regulations, see note to Gamble-Robinson Commission Co. v. Chicago & N. W. Ry. Co., 94 C. C. A. 230.]</p> <p>2. Commerce (§ 88*) — Interstate Commerce — Decision of Commission — Effect.</p> <p>Where the Interstate Commerce Commission decided that a tariff provision for an allowance for carting shipments of sugar from refinery to the cars constituted a rebate and should be eliminated, the decision of itself operated to eliminate such provision from the filed tariffs, without action upon the part of the carriers; they being required to refrain from making such allowances from the time of the decision until it should be reversed, or its operation suspended.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 139, 141; Dec. Dig. § 88.*]</p> <p>3. Carriers (§ 32*) — 'Interstate Commerce — Rates — “Transportation” — “Service Connected with Transportation.”</p> <p>Interstate Commerce Act (Act Feb. 4, 1887, c. 104, § 15, 24 Stat. 384 [U. S. Comp. St. 1901, p. 3165], as amended by Act June 18, 1910. c. 309, § 12, 36 Stat. 551 [U. S. Comp. St. Supp. 1911, p. 1300]), provides that if the owner of property transported under the act directly or indirectly renders any service connected with the transportation, or furnishes any instrumentality used therein, the charge and allowance therefor shall be no more than is just and reasonable,, and the Commission may, after hearing on a complaint, or on its own initiative, determine what is a reasonable charge; etc. Hela, that cartage of sugar from refinery 'to cars did not constitute “transportation,” nor a “service connected with transportation,” within such act, for which the carrier was justified in making an allowance under section 15: and that suck allowance constituted an illegal rebate.</p> <p>[Ed. Note. — For. other cases, see Carriers, Cent. Dig. §§ 83-85; Dec. Dig. § 32.*</p> <p>For other definitions, see Words and Phrases, yol. 8, pp. 7075, 7070.]</p>

McCall,-Judge. Suit by the Cumberland Telephone & Telegraph Company against the City of Memphis and others. From an order denying a motion for a preliminary injunction, complainant appeals.

<p>In Error to the District Court of the United States for the Western Division of the Southern District of Ohio; Howard C. Hollister, Judge.</p> <p>Criminal prosecution by the United States against William P. Harrison. From a judgment of conviction, defendant brings error.</p>

C. Van Fleet, Judge.. Action at law by the Western Pacific Railway Company against tha National Surety -Company. Judgment for plaintiff, and defendant brings error. The defendant in error brought an action against the plaintiff in error to recover upon an indemnity bond. The parties will in this - opinion be designated as they were in the court below, plaintiff and defendant.

Proceeding in admiralty by the Monongahela River Consolidated Coal & Coke Company and the Huntington & St. Louis Towb.oat Company for limitation of liability. Pleas in bar by Mrs. Emma Hurst and Mrs. Bessie Schinnerer were sustained, and petitioners appeal.

<p>Equity (§ 46*) — Jurisdiction—Adequate Remedy at Law — Trade Libel.</p> <p>Equity is without jurisdiction of a suit by a piano manufacturer for relief against a retail dealer in other makes of pianos, on allegations in the bill that defendant keeps in his store a piano of complainant’s manufacture in an untuned and poorly voiced condition, which he represents to customers as a new piano from complainant’s factory in a normal condition, for the purpose of depreciating the quality of complainant’s instruments ; the cause of action stated being one for trade libel only, for which there is an adequate remedy at law.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 151,152,157,159-163; Dec. Dig. § 46.*]</p>

McCall,'Judge. Suit in equity by the Coca Cola Company against the Gay-Ola Company. Decree for defendant, and complainant appeals. Complainant below, aj)pellant here, sought protection against the unfair competition of defendant. The bill of complaint carried as exhibits various letters and circulars of defendant. The answer admitted these letters and circulars, but denied any wrong, in intent or in law, in that connection'.

Randis, Judge. Knute K. Brimie and Peter K. Brimie were convicted of joint violation of the oleomargarine act under several counts, and they bring error. Plaintiffs in error, hereinafter termed defendants, who are brothers, dealers ill oleomargarine at wholesale, were indicted for violations of sections 4, 6, 13, and IT of the oleomargarine acr (Act Aug. 2, 1886, c. 810, 24 Stat. 209, 213, 2J2 [IT. S. Comp. St. 1901, pp. 2229, 2230, 2232, 2234]).

<p>1. Insurance (§ 272*) — Marine Insurance — Effect of Understatement of Cargo in Bill of Lading.</p> <p>It is not a defense to an action on a marine policy to recover tbe value of a portion of a lumber cargo jettisoned that tbe measurement of tbe cargo, correctly given in tbe policy, was understated in tbe bill of lading because of a custom of tbe shipper, in case of dressed lumber, to allow for the reduction in bulk by reason of tbe dressing, where the insurer is protected from any increased risk from overloading by a warranty of seaworthiness in the policy.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 572-582; Dec. Dig. 8 272.*]</p> <p>2. Insurance (§ 272*) — Marine Insurance — Action on Policy — Dm-enses.</p> <p>Whether or not such practice of shippers, if general, or, in the particular case, if known to insurers, would influence them in accepting or rejecting a risk, is not a matter for expert testimony, since it is not a. question of general usage, but one to be determined in each case by the particular underwriter; and a policy, otherwise legal, cannot be invalidated after a loss because the insurer was not advised of the fact.</p> <p>[Ed. Note. — Por other cases, see Insurance, Gent. Dig. §§ 572-582; Dec. Dig. § 272.*]</p>

<p>1. Mortgages (§ 42*) — -Form—Chattels Real.</p> <p>Where mortgages in form chattel mortgages conveyed several elevators and appurtenances situated on the rights of way of certain railroads, under lease arrangements with the railroads, the property being chattels real, the mortgages would be regarded as mortgages of real estate, and were therefore not objectionable because the statutory requirements respecting chattel mortgages had not been complied with.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 110; Dec. Dig. § 42.*]</p> <p>2. Bankruptcy (§ 165*) — Mortgages—Pree-erences—Present Advancement.</p> <p>A bankrupt, being liable to defendant bank on an overdraft, executed certain mortgages on its elevators to the bank. The bank then entered to the bankrupt’s credit the consideration for the mortgages, without comment on its books as to whether the amount should apply on the overdraft or be treated as present loans. The bankrupt had been drawing checks on the bank, which had been honored without regard to the overdraft. and the same course was pursued after the giving of the mortgages; the money realized from the mortgages being at once put into tiie bankrupt’s checking account and used to increase its capital to continue its business. Held, that the mortgages should bo regarded as having been bona fide given Cor cash advances and did not constitute preferences. though the bankrupt was then insolvent, and known to be so by the bank, but, on the contrary, were valid liens.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 259, 260, 266; Dec. Dig. § 165.*]</p>

In the matter of the bankruptcy proceedings of Max Pincus. From an order rescinding a prior order staying the bankrupt’s discharge, pending a suit to subject certain exempt property to the claim of H. S. Meinhard & Bro., they appeal. In January, 1912, Max Pincus was, upon his voluntary petition for that purpose, adjudicated, a bankrupt. He claimed exemption of certain personal property, comprising a stock of merchandise, consisting of shoes, clothing, dry goods, and notions.

<p>Petition to Revise Order of tbe District Court of the United States for the Southern District of Georgia; Emory Speer, Judge.</p> <p>In the matter of Max Pincus, bankrupt. On petition of H. S. Meinhard & Bro. to revise an order of the District Court.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Anton Petersen. Proceeding by the Central Trust Company of Illinois, trustee of the bankrupt, against A. Robertson, to restrain the enforcement of a judgment. A demurrer to the petition was overruled, and defendant liles a petition for review. This is a petition to review and revise an order entered in a proceeding in bankruptcy.

<p>Courts (§ 405*)- — Taking and Perfecting Appeal in Time — Failure op Judge to Allow.</p> <p>Where the judge who made an order granting a preliminary injunction was temporarily absent from the district, and the papers for an appeal, duly made out, were presented to another judge of the same court for allowance within the 30 days given for taking an appeal by section 129 of the Judicial Code (Act March 3, 1913, c. 231, 36 Stat. 1134 [ü. S. Comp. St. Supp. 1911, p. 194]), but such judge declined to act, the defendant was not thereby deprived of his right of appeal, and the judge who made the order on his return properly allowed the appeal nunc pro tunc.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1097-1103; Dec. Dig. § 405.*</p> <p>Review of interlocutory decree granting or refusing injunction in patent case in Circuit Court of Appeals, see notes to Consolidated Piedmont Cable Co. v. Pacific Cable Ry. Co., 3 C. C. A. 572; Southern Pac. Co. v. Ear 1, 27 C. C. A. 189; United States Freehold Land & Emigrant Co. v. Gallegos, 32 C. O. A. 484.]</p>

Platt, Judge. Suit in equity by the Metallic Rubber Tire Company against the Hartford Rubber Works Company. Decree for defendant, and complainant appeals. The decree of the District Court dismissed the bill in a suit to restrain the alleged infringement of letters patent No. 609,320, issued to Calvin T. Adams on August 16, 1898, for an improvement in vehicle tires. The complainant sues as assignee of the patentee.

Petition for Revision of Proceedings of the District Court of the United States for the Southern District of New York, in Bankruptcy; George C. Holt, Judge. ■ In the matter of bankruptcy proceedings of the Brockton Ideal Shoe Company.

In the matter of the Jules & Frederic Company, bankrupt. From an order of the District Court (193 Fed. 533), James H. Duffy appeals and petitions to revise the same.

<p>1. Judgment (§ 675*) — Res Judicata — Beesons Concluded.</p> <p>Where a suit for infringement of a patent, brought against a user of the alleged infringing device, was defended by the manufacturer, which became the real defendant therein, and resulted in a decree expressly adjudging the validity of the patent, which decree was affirmed on appeal, the validity of the claims in issue became res judicata, and cannot be again litigated by the manufacturer in a subsequent action directly against it, and especially on a ground which was directly raised by a petition for a bill of review in the prior litigation, and passed on by the Circuit Court of Appeals.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1190, 1191, 119i; Dec. Dig. § 675.*</p> <p>Operation and effect of decision in equitable suit for infringement, see note to Westinghouse Electric & Mfg. Co. v. Stanley Instrument Co., 68 C. C. A. 541.]</p> <p>2. Patents (§ 328*) — 'Validity and Infringement — Oar Axle Box.</p> <p>The Bemis patent, No. 239,702, for a car axle box, claim 1, held valid and infringed by the device of the Brill patent, No. 418,439.</p> <p>3. Akpeal and Error (§ 1017*) — Findings of Fact by Referee — Review.</p> <p>Findings of fact by a referee by consent in an action at law, even under Act Pa. 1889 (P. L. 80), which gives the court an unusually large power to review and reverse or alter such findings on exceptions, are entitled to great weight, and should bo accepted by the court until overthrown! by a clear conviction of error, the burden of showing which rests on the party excepting.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 8996-4005; Dec. Dig. § 1017.*]</p> <p>4. Patents (§ 274*) — Infringement—Damages.</p> <p>Findings of a referee of the amount of damages recoverable for infringement of a patent he'ld sustained by the evidence, whether the damages should be measured by the rule of profits or of reasonable royalty.</p> <p>[Kd. Note. — For other cases, see Patents, Cent. Dig. §§ 419-421; Dee. Dig. § 274.*]</p> <p>5. Patents (§' 275*) — Infringement—Computation of Damages.</p> <p>AVhere plaintiff and defendant were the principal competitors in the sale of a car axle box, covered by a patent owned by plaintiff, which for some years defendant purchased from plaintiff and afterwards made in infringement of the patent, during which latter years the selling price declined owing to the competition, a referee, in fixing the selling price, for the purpose of determining plaintiff’s damages from the competition, properly included with the infringing years the years immediately preceding, and to oh the average selling price during all such years.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 422-431; Dec. Dig. § 275.*]</p> <p>6. Patents (§ 275*) — Infringement—Damages Recoverable.</p> <p>The owner of a patent, whose business is established, successful, and well equipped, may recover from an infringer in an action at law the profits ho would probably have made on sales of the infringing device, and those profits are determined by the average profits made by plaintiff during a reasonable period.</p> <p>[Ed. Note. — For other cases, see Patents, Gent. Dig. §§ 422-431; Dec. Dig. § 275.*</p> <p>Accounting by infringer for profits, se'e note to Brickill v. Mayor, etc., of City of New York, 50 O. G. A. 8.]</p>

<p>Appeal from the District Court of the United States for the Southern District of New York; Henry G. Ward, Judge.</p> <p>Suit by the Standard Plunger Elevator Company, as exclusive licensee, against William E. D. Stokes and others, for alleged infringement of United States patent No. 899,224, granted September 22, 1908, to Thure Earsson; one of the defendants, for a hydraulic elevator. From an order awarding a preliminary injunction, defendants appeal.</p> <p>This cause came here upon appeal from an order awarding a preliminary injunction. Upon the hearing, by agreement of both parties, some additional documents were added to the record, and a stipulation entered into that the cause should be treated as if the appeal were from an interlocutory decree for injunction and accounting. The court approved the stipulation, and the cause will be disposed of in accordance therewith. The suit is the usual one for alleged infringement of United States patent No. 899,224, granted September 22, 1908, to Thure Earsson, one of the defendants, for a “hydraulic elevator.” Complainant sues as the exclusive licensee.</p>

Mayer, Judge. Suit in equity by the Standard Plunger Elevator Company against William E. D. Stokes and others. From an order denying a preliminary injunction, complainant appeals. This cause comes here upon appeal from an order denying a motion for a preliminary injunction. The suit is the usual one for infringement of United States patent 963,905, for a plunger hydraulic elevator, granted July 12, 1910, to the defendants for an invention made by one of them, Earsson.

In Equity. Suit by Eouis A. Sayre and Howard A. Sayre, individually and as partners under the firm name of L. A. Sayre & Son, against the McGill Ticket Punch Company. On demurrer to bill.

<p>In Equity. Suit by Frank M. Peters against the Chicago Biscuit Company, Augustus B. Crossman, Michael J. Flanagan, and Michael J. Hogan. On final hearing.</p>

<p>Caeetebs (§ 32*) — Interstate Commerce — Reasonableness oe Regulations —Lighterage Charges in New York Harbor — Discrimination.</p> <p>Petitioners, who are interstate railroad companies having eastern termini on the wes*: side of New York Kay and the Hudson, established a lighterage zone, sailed the “lighterage limits,” covering the greater part of the shore line of Greater New York, described in their tariffs, within which they perform lighterage sen ice without additional charge, receiving and delivering freight at public and private wharves therein. They also maintain a number of public, freight terminals within such limits, at which they deliver and receive freight, and to and from which its transportation is covered by their bills of lading. One of the largest of such terminals is on the Easi; River in Brooklyn, known as the “Jay Street torminal,” and consisting of a warehouse, yards, and tracks, used by petitioners jointly under contracts with the owners, who receive and deliver freight for petitioners, doing the loading', unloading, and lighterage between there and the rail terminals for a stated price fixed in the contracts. Such owners also operate a sugar refinery in the vicinity, a large part of the product of which passes through the terminal, being- received I here by petitioners and treated precisely as freight received from other shippers. Such shipments, however, constitute but a small percentage of the whole passing through such terminal. Respondent sugar re&nlug company has its office in Now York, but its plant is at Yonkers, 10 miles outside of the lighterage limits. It adopted a plan by which it ordered sugar purchased to go over petitioners’ lines, loaded on lighters at the refinery, marked with the name and address of the purchaser, with shipping directions to deliver at its New York office. The lighter proceeded to a pier owned by tlio lighterage company on North River, within the lighter-age limits, and there the master was given a form of bill of lading showing the company at its office address as Hie consignor, and directed to deliver the shipment to one of petitioners at its terminal on the west side of the bay, and on making delivery he obtained the signature of such petitioner’s agent to the bill of lading. Held, that the fact that the owners of the Jay street terminal wore paid as such for handling and lighter-ing their own product, after it had become the property of the purchasers by delivery to the carrier at such terminal, did not constitute the giving of a rebate in violation of Interstate Commerce Act Feb. 4, 1887, e. 104, § 2, 24 Slat. 37!) (U. S. Comp. St. 1901, p. 3155), in the absence of any evidence that it was a device for that purpose; nor did it constitute tiie giving of an undue and unreasonable preference or advantage over respondent company, within section 3, because petitioners did not pay for the lighterage of respondent’s shipments, since they were not in fact made from a point within the lighterage limits, the device of having the lighters stop on the way from Yonkers at a place within such limits, where respondent had no terminal facilities and made no tender of delivery, being a mere subterfuge, which gave it no legal or equitable claim to be a shipper from there.</p> <p>[Ed. Note. — -For other cases, see Carriers, Cent. Dig. §§ 83-85; Dec. Dig. § 32.*</p> <p>What constitutes an unlawful preference or discrimination by a carrier under interstate commerce regulations, see note to Gamble-Robinson Commission Co. v. Chicago & N. W. Ry. Co., 94 O. C. A. 230.]</p> <p>Mack, Judge, dissenting.</p>

Petition by the Florida East Coast Railway Company against the United States, in which the Interstate Commerce Commission, the Railroad Commissioners of Florida, the Florida Fruit & Vegetable Shippers Protective Association, and others intervene. On motion to strike out evidence, and on final hearing.

<p>In Equity. Suit by the United States against the Hamburg-Amer-ikanische Packet-Eahrt-Actien-Gesellschaft and others. On demurrer to tiie bill for want of equity.</p> <p>The bill was filed by the United States under the federal anti-trust statute, to restrain a further execution of an agreement between certain steamship companies for the formation of an association, called the “Atlantic Conference,” relating to the carriage of steerage passengers between the United States and Europe.</p>

<p>1. Removal of Causes (§ 15*) — Grounds—Diverse Citizenship — Remova-bility.</p> <p>A case not removable for diverse citizenship when and as brought may thereafter become removable, and may then be removed, though the original time to answer or plead has expired, provided the case is one that could have been removed if brought as it was thereafter made.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 25; Dec. Dig. § 15.*]</p> <p>2. Removal of Causes (§ 16*) — Right to Remove — Statute.</p> <p>The right of removal is wholly statutory, and, when claimed, must he found in the statute.</p> <p>[Kd. Note. — For other cases, see Removal of Causes, Cent. Dig. § 6; Dec. Dig. § 10.*]</p> <p>3. Removal of Causes (§ 26*) — Guo unds — Diverse Citizenship — Citizens of Teekitoey.</p> <p>Removal Act March 3, 1911, c. 231, § 28, 36 Stat. 1094 (ü. S. Comp. St. Supp. 1911, p. 140), while available as between citizens of states, is not available to citizens, of territories.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 60-63; Dec. Dig. § 26.*]</p> <p>4. Removal of Causes (§ 26*) — Case not Origin alt,y Removable — Admission of Tekeitoky as State Pending Suit — Effect.</p> <p>Where suit was brought by plaintiff, a citizen of Montana, against defendant, a citizen and resident of the then territory of Arizona, the fact that the territory was made a state after issue joined did not entitle defendant to remove the cause to the federal courts for diversity of citizenship, under the rule that, where there is no change of jiarties, jurisdiction depending on the condition of a party is governed by that condition as it was at the commencement of the suit.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 60-63; Dec. Dig. § 26.*]</p> <p>5. Removal of Causes (§ 16*) — Right to Remove — Change of Condition.</p> <p>A case not removable when and as brought can become removable only by reason of some subsequent pleading or proof of facts disclosing re-movability, and of facts which existed when the suit was brought.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 25; Dec. Dig. § 15.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Jacobson & Perrill. On petition to review a referee’s order allowing the claim of Goldstein Bros, and others as a secured and preferred claim.

In Admiralty. Suit by the Susquehanna Coal Company, owner of the barge Devon, against the Eastern Dredging Company and the Boston Towboat Company, owner of the tug Vim; and suit by the Boston Towboat Company against the Susquehanna Coal Company for salvage.

<p>1. Shipping (§ 136*) — Loss os Cargo op Tow — Harter Act.</p> <p>Harter Act Eeb. 13, 1893, e. 105, § 3, 27 Stat. 445 (U. S. Comp. St. 1901, p. 2946), providing that, if the owner of a vessel shall exercise due dili- • gence to make her seaworthy and properly manned, equipped, and supplied, neither lie nor tlie vessel shall be liable for damage or loss resulting from faults or errors in navigation or in the management of said vessel, applies only to the relation between a vessel and the cargo with which she is herself laclen, and does not relieve the owner of a tug from liability for its negligence in towing a barge, because the barge is under charter to him and he is in fact the carrier of her cargo.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 492; Dec. Dig. § 136.*]</p> <p>2. Towage (1 11*) — Loss op Tow — Liability op Tug.</p> <p>A tug, with two laden coal barges in- tow, on hawsers which made the entire tow nearly half a mile long, in passing around Cape Cod undertook to go through Pollock Kip Slue, in which the rear barge grounded and was so injured that she sank. The route through the Slue, while saving a distance of 17 miles, was dangerous for vessels of the draft of the barge, which was greater than that of the other two vessels, owing to the narrowness and shifting character of the channel, field, that if the barge followed in the wake of the tug, as the evidence showed she did, the fact of her stranding raised a presumption of fault on the part of the tug, and that the evidence did not overcome such presumption, but tended to show that on the course taken by her there was not sufficient depth of water for the barge.</p> <p>[Ed. Note. — For other cases, see Towage, Cent. Dig. §§ 11-23; Dec. Dig. § 11.*]</p> <p>3. Towage (§ 11*) — Loss op Tow — Liability op Tug.</p> <p>A short time before the stranding the shoal to the east had extended westward into the channel, and a buoy had been placed 1,200 feet to the westward of those marking the east side of the channel, and notice given and published to mariners that vessels of deep draft should pass to the westward of such buoy. There was evidence tending to show that the buoy was not in place at the time of the stranding. Although notices of changes in the channel had repeatedly been published during several months, and the fact was generally known to navigators, the master of the iug had no knowledge of it and passed so far to the eastward that apparently tlie depth of water was not sufficient for the barge, which caused the stranding. Held that, under the rule that a tug is bound to know the nature of the ground and depth of water as regards her tow, and to exercise a proportionately higher degree of care and skill in localities more than usually dangerous, as this was, the ignorance of the master did not exonerate the tug from liability.</p> <p>I Ed. Note. — For other cases, see Towage, Cent. Dig. §§ 11-23; Dec. Dig. § 11.*]</p> <p>4. Shipping (§ 208*) — Limitation op Liability — Privity and Knowledge of Shipowner.</p> <p>That the master of a tug. with a good record of 14 years as a master, was ignorant of a particular danger which caused the loss of a tow, and of which he was legally bound to know, does not establish his incompetency in such sense as to charge the owner with privity and knowledge because of his employment, which will deprive such owner of the right to a limitation of liability for the loss.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 645; Dee. Dig. § 208.*</p> <p>Limitation of owner’s liability, see note to The Longfellow, 45 O. C. A. 387. ]</p> <p>5. Shipping (§ 136*) — Loss op Cargo op Tow — Harter Act — “Engaged in Transporting Merchandise or Property.”</p> <p>A tug engaged in towage, the tug and tow belonging to distinct owners, having with each other only the relation arising under an ordinary contract for safe towage, is not within the Harter Act, providing certain exemptions for vessels “engaged in. transporting merchandise or property.”</p> <p>TEd. Note. — For other cases, see Shipping, Cent. Dig. •§ 492; Dec. Dig. § 136.*]</p>

<p>1. Towage (§ 11*) — Grounding oe Tow — Liability of Tug.</p> <p>A towage company, Raving tile only tugs in service on the Kennebec river, undertook to tow a loaded coal barge through a dangerous passage in the river, where a dredging company had been at work, but had stopped, leaving the work uncompleted, and leaving rock and other material on the bottom, so that there was not sufficient depth of water for the barge, and she grounded and was injured. The towage company knew of th.e dredging operations, but made no examination or inquiry to ascertain the depth of water left or the condition of the bottom. H&ld-, that it was bound to know such facts, and was chargeable with negligence which rendered it liable for the injury to the tow.</p> <p>[Ed. Note. — For other cases, see Towage, Cent. Dig. §§ 11-23; Dec. Dig. § 11.*]</p> <p>2. Towage (§ 11*) — Care and Skill Required of Tug.</p> <p>While a tug is not an insurer of the safety of her tow, she is held to the use of the reasonable care exercised by ordinarily prudent mariners engaged in such service, which is measured by the dangers and difficulties to be encountered; and when the service is performed in the home port of the tug, or on a river where the towage company is the only one engaged in like service, a much greater degree of care is required in ascertaining the depth of water and the character of the bottom.</p> <p>[Ed. Note. — For other cases, see Towage, Cent. Dig. §§ 11-23; Dee. Dig. § 11.*]</p> <p>3. Navigable Waters (§ 25*) — Obstruction by Dredging Company — Liability for Injury to Vessel.</p> <p>Where a dredging company, under contract with the United States to excavate the bottom of a narrow and dangerous channel in the Ken-nebec river through a rocky ledge to a depth of 18 feet, temporarily left the work when only partly completed, leaving the bottom obstructed by loose rock thrown out in blasting, so as to reduce the depth to only about 11 feet, without marking the i>lace or giving notice of its condition to the government or navigators, it was chargeable with negligence, and liable for injury to a barge by grounding while being towed through the passage. *</p> <p>[Ed. Note. — For other eases, see Navigable Waters, Cent. Dig. § 65; Dec. Dig. § 25.*]</p> <p>4. Evidence (§ 77*) — Presumptions—Failure to Call Witness.</p> <p>The failure of a party to call as a witness an employé who had knowledge of the matters in issue warrants a presumption unfavorable to the contentions of such party.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 97; Dec. Dig. § 77.*]</p>

<p>In Admiralty. Suit by Enrico Villa, master of the Italian steamship Italia, and others, against the schooner Brina P. Pendleton, Fields S. Pendleton, claimant, for salvage.</p>

In Admiralty. Suit by the Richard T. Green Company against the steamer Philomena. On petition by the receiver in bankruptcy of the Boston Fisheries Company, owner, that the marshal be ordered to turn over to him the proceeds of a sale of said steamer made under order of the court.

<p>In Admiralty. Suit by the Lockwood Manufacturing Company against the steamer Bethulia. On petition of the receiver in bankruptcy of the Boston Fisheries Company, owner, for an order that the marshal turn over to him the proceeds of a sale of the steamer made under order of the court.</p>

In Admiralty. Suit by the Lockwood Manufacturing Company against the steamer Geisha. On petition by the receiver in bankruptcy of the Boston Risheries Company for an order that the marshal turn over to him the proceeds of a sale of the steamer made under order of the court.

<p>In Admiralty. Suit by the Lockwood Manufacturing Company against the steamer Geisha. On distribution of proceeds of vessel and determination of maritime liens.</p>

<p>In Admiralty. Suit by the Richard T. Green Company against the steamer Philomena. On determination of liens against proceeds of vessel.</p>

<p>In Admiralty. Suit by the Lockwood Manufacturing Company against the steamer Bethulia. On distribution of proceeds of sale and determination of liens.</p>

In Admiralty. Suit by' the Lockwood Manufacturing Company against the steamer Bethulia. On petition of the trustee in bankruptcy of the Boston Fisheries Company, owner, for payment of part of the costs of bankruptcy administration out of proceeds in the registry.

<p>1. Bankruptcy (§ 848*) — Claims—Priority—Wages—“Workmen”—“Servant.”</p> <p>Bankr. Act July 1, 18.98, e. 541, § 64b, 30 Stat. 563 (U. S. Comp. St. 1901, р. 3447), as amended by Act June 15, 1906, c. 3333, 34 Stat. 267 (U. S. Comp.' St. Supp. 1911, p. 1507), provides that the debts of a bankrupt entitled to priority, aside from taxes, are wages due to workmen, clerks, traveling or city salesmen, or servants, earned within three months prior to the commencement of the proceedings, not exceeding $300 to each applicant. Claimants, father and son, were president and general manager, treasurer and assistant general manager, respectively, of the bankrupt corporation. The father performed only executive duties, while the son, in addition to keeping the books of the company, supplied brush bristles and fillers to the operators, carried brushes to the trimmers and to the paintshop, and packed them in boxes, for all of which he received $25 per week; there being no evidence as to the value of the services performed by him, other than his work in keeping books, etc. Held, that neither father nor son were entitled to priority for saláry due from the corporation; the term “workmen,” as used in the act, being intended to mean persons employed in manual labor, whether skilled or unskilled; an artificer, mechanic, or artisan; a handicraftsman; one who works in any department of physical or mental labor; and a “servant” as one who serves or attends a person employed by another and subject to his orders; one who labors for the benefit of a master or employerf an attendant; a subordinate assistant or agent.</p> <p>[Ed. Note. — Bor other cases, see Bankruptcy, Cent. Dig. § 536; Dec. Dig. § 348*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6422-6429; vol. 8, pp. 7798, 7522-7523.]</p> <p>2. Bankruptcy (§ 348*) — Claims—Priority—Claims for Services.</p> <p>A state statute cannot enlarge the priority given by Bankruptcy Act July 1, 1898, e. 541, § 64b, 30 Stat. 563, as amended by Act June 15, 1906, с. 3333, 34 Stat. 267 (U. S. Comp. St. Supp. 1911, p. 1507) to workmen, traveling or city salesmen, or servants, etc.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 536; Dec. Dig. § 348.*]</p>

In Equity. Suit by the Portland Railway, Light, & Power Company against the City of Portland and certain of its officers to restrain the enforcement of a city ordinance fixing minimum rates to be charged by gas and electric light companies. On application for preliminary injunction.

In the matter of John E. Searles, bankrupt. On motion by the trus tee to require a creditor to pay over a surplus arising from a sale of collateral.

<p>Courts (§ 497*) — Receivers—Right to Sue in Foreign Jurisdiction — Suit as Judgment Creditor.</p> <p>A receiver for a corporation appointed by a state court, who as such has recovered a judgment in his own state, may maintain an action thereon in another jurisdiction as a judgment creditor, and his description of himself in his pleading as receiver may be treated as surplusage.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1386, .1397, 1398, 1404-1406; Dec. Dig. § 497.*</p> <p>Actions by and against receivers of federal courts, see note to J. I. Case Plow Works v. Finks, 26 C. C. A. 49.]</p>

<p>BbOKERS (§ 57*) — -EMPLOYMENT—TERMINATION-RIGHT TO COMMISSIONS.</p> <p>Where plaintiffs were employed by defendant as brokers to negotiate sales of certain of defendant’s bonds, but before any sales had been completed, and after the expiration of a reasonable time to effect the same, defendant terminated plaintiffs’ employment by notice, plaintiffs were not entitled to recover commissions on a sale of other bonds, subsequently issued by defendant and guaranteed by another corporation, to a firm to which plaintiffs had previously introduced defendant’s officers and endeavored unsuccessfully to .make a sale of the original bonds.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 66, 67, 72; Dec. Dig. § 57.*1</p>

Action at law by the Coney Island Company against the Mclntyre-Paxton Company. Judgment for defendant, and plaintiff brings error. The plaintiff in error owns and conducts an amusement park on the Ohio river near Cincinnati. It brought this suit to recover possession of those portions of its premises on which stood certain amusement devices owned by defendant, including roller coaster and merry-go-round.

■ Appeal from the Circuit Court of the United States for the District of Colorado; Robert E. Eewis, Judge. Suit in equity by the United States against the Elome Coal & Coke Company and the Baldy Coal Company. Decree for defendants, and complainant appeals.' This action was brought by the United States to cancera patent for the E. V2 of the S. E. % of section 23, township 32, range 64, Las Animas county, Colo., issued to Samuel Haigh, November 14,1904.

<p>1. CORPORATIONS. (§ 297*) — DIRECTORS—AUTHORITY-BUSINESS POLICY.</p> <p>While directors of a private business corporation may uot act oppressively, fraudulently, or in, such a manner as to destroy the corporate existence, or contrary to law or the purposes for which the corporation was organized, and may not dissipate its assets or secure private advantage at corporate expense, they are nevertheless the governing body, representing both 'the majority and minority stockholders; and as such possess a wide discretion in determining its business policies and the methods of executing them, which a stockholder cannot control or have revised by an appeal to the courts.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1274^-1291; Dec. Dig. § 297.*]</p> <p>2. Corporations (§ 202*) — Directors—Action— Settlement op Litigation-Bights op Objecting Stockholder.</p> <p>A controversy having arisen between a corporation engaged in manufacturing stoves and its employés, who were members of a labor organization, the union employes quit, and the labor organization inaugurated an extensive boycott against the corporation and its products, whereupon suit was instituted for an injunction against the labor organization and its leaders, and, an order directing the issuance of a modified injunction having been sustained by the Circuit Court of Appeals, both parties appealed to the Supreme Court, pending which a settlement was arrived at, whereby the corporation released its right to sue for treble damages under Sherman Anti-Trust Act July 2, 1890, e. 647, § 7, 26 Stat. 210 (U. S. Comp. St. 1901, p. 3202), on the ground that the labor organization constituted an unlawful combination in restraint of trade and commerce, to which settlement complainant, a minority stockholder, objected. Held, that such settlement was within the jurisdiction of the corporation’s board of directors in the ordinary management of the corporation’s affairs, and, having been entered into in good faith, was binding on such minority stockholder notwithstanding his protest, and he was therefore not entitled thereafter to maintain a suit for such damages for the benefit- of the corporation.</p> <p>[Ed. Note. — -For other cases, see Corporations, Cent. Dig. §§ 770-780; Dec. Dig. § 202.*]</p> <p>3. Monopolies (§ 12*) — Labor Union — Contract—Validity.</p> <p>A contract between a manufacturing corporation and a labor union, by which the corporation thereafter agreed to pay union wages and to comply with union hours of labor and conditions of employment, but which contained no direct provision binding the corporation not to employ nonunion men, was not objectionable as tending to create a monopoly in favor of members of the unions to the exclusion of others seeking employment.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. § 12.*]</p>

Eewis, Judge. Action by E. C. Cliff against the Otis Elevator Company. Judgment for plaintiff, and defendant brings error. Cliff sued the Elevator Company to recover damages for personal injuries received by him on the 15th day of April, 1910, while assisting in placing an elevator engine in the bottom of an elevator shaft in the Denver Gas & Electric Company’s building, Denver, Colo.

<p>1. INSURANCE (§ 622*)-ACTIONS ON POLICIES — LIMITATION BY PROVISIONS OP Policy.</p> <p>Reasonable provisions in an insurance policy, limiting the time for suit thereon, are valid, and, unless waived, are binding upon the parties.</p> <p>I Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1541-1550; Dec. Dig. § 622.*]</p> <p>2. Insurance (§ 622*) — Action on Policy — Limitation by Provisions op Policy.</p> <p>An accident policy provided that, in ease of death of the insured, an action on the policy must be brought within six months after the death. Insured disappeared from a vessel on which he was a passenger under circumstances which, as shown by the undisputed testimony, rendered it impossible that he could hare been rescued or reached land. Within a month plaintiff applied for and was granted letters of administration on his estate, and presented proofs of death.; but the claim was rejected on the ground that it was not shown that death resulted from a cause within the policy. Nearly four years afterward an action was commenced on the policy. There was no evidence of the death of, insured at any other time or in any other manner than as shown in the proofs previously submitted, nor was the death at any time denied by defendant. Iield, that in the absence of waiver, or of any excuse for the delay, the action was barred by the limitation in the policy.</p> <p>[Ed. Note. — For other cases, see Insurance, Gent, Dig. §§ 1544-1550 : Dec. Dig. § 622.*]</p> <p>3. Death (§ 4*) — Oiboumstantiax, Evidence.</p> <p>Death, like any other fact, may be proved by circumstantial evidence alone.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 5, 6; Dec. Dig. § 4.*]</p>

<p>1. Public Lauds (§ 54*) — School Lands — Fobfeixubk—Action to Vacate— Laches.</p> <p>Act Kan. Jan. 25, 1907 (Laws 1907, c. 373), provides that no action shall be brought to set aside a forfeiture of school lands, unless commenced within six months after the forfeiture was declared, or, when such time has already elapsed, within six months after the act took effect. A contract to purchase school land from the state, assigned to complainant, was forfeited for nonpayment on August 18, 1900, and the land was again sold to defendants’ grantor on July 9, 1901. Complainant, though learning of the forfeiture in October, 1903, did not commence an action to set it aside until January 20, 1905, when he brought suit for such relief, but did nothing to bring it to trial until May 20, 1907, when the suit was dismissed on complainant’s own motion without prejudice, after which, on July 23, 1907, he instituted another suit in the federal court for similar relief, during which time defendants had been in possession and had erected valuable improvements on the land. Held, that complainant’s right, ro relief was barred by laches, though the suit was commenced within the statute of limitations.</p> <p>[Ed. Noto. — For other eases, see Public Lands, Cent. Dig. §§ 152-169; Dec. Dig. § 54.*]</p> <p>2. Equity (§ 87*) — Laches—Limitations.</p> <p>The rule that courts o,f equity are not bound by, but usually act or refuse to act in analogy to, the statute of limitations relating to actions at law of like character, means that under ordinary circumstances a suit in equity will not be stayed for laches, before, and will be stayed after, the time fixed by the analogous statute of limitations at law; but if unusual conditions or extraordinary circumstances make it inequitable to allow the prosecution of a suit after a briefer, or to forbid its maintenance after a longer, period than that fixed by the statute, the chancellor will not be bound by the statute, but will determine the case in accordance with the equities which condition it.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 242-244; Dee. Dig. § 87.*]</p>

<p>Appeal from the Circuit Court of the United States for the District of Kansa s.</p> <p>Action by T. J. Burgess against Amiel M. Hillman and others. Judgment for defendants, and plaintiff appeals.</p>

Action by Lee Klicke, a minor, by August Mathebel, his next friend, against the Allegheny Steel Company. Judgment for plaintiff, and defendant brings error.

Dan-dis, Judge._•_. Action by Anton Majkzrak against the Michigan Central Railroad Company. There was a judgment for plaintiff, and defendant brings error. Defendant in error, hereinafter denominated “plaintiff,” was employed by plaint iff in error, hereinafter denominated “defendant,” to perform carpenter work in repairing: freight cars at the defendant’s yard in Kensington, Ill.

<p>Appeal from the District Court of the United States for the District of New Jersey; Joseph Cross, Judge.</p> <p>Action by James R. Headley, trustee of John N. Martin, bankrupt, against Eugene B. Goodwin and another. Judgment for plaintiff, and defendants appeal.</p>

In Plrror to the Circuit Court of the United States for the Northern District of Ohio; John M. Killits, Judge. Action at law by Henry Poole against the Wyman & Gordon Company. Judgment for plaintiff, and defendant brings error.

<p>Courts (§ 405*) — Judgment Subject to Review — “Final Judgment.”</p> <p>Where defendant demurred to two separate causes of action alleged in the complaint, and the demurrer was sustained as to the first cause of action, and overruled as to the second, with leave to answer,' defendant having answered, the judgment sustaining the demurrer to the first cause of action was not final, and hence was not reviewable by writ of error until the determination of the issues on the second cause of action; the term “final judgment” being defined to mean'one which disposes of all matters in litigation between the parties as shown by the record.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1097-1103; Dec. Dig. § 405.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2774r-2798; vol. 8, p. 7663.</p> <p>Finality of judgments and decrees for purposes of review, see notes to Brush Electric Co. v. Electric Imp. Co. of San Jose, 2 C. C. A. 379; Central Trust Co. v. Madden, 17 C. C. A. 238; Prescott & A. O. Ry. Co. v. Atchison, T. & S. F. R. Co., 28 C. C. A. 482.]</p>

In the matter of the Ale Voy Hardware Company, a bankrupt. From an order refusing to confirm a composition objected to by the National Hardware Association of the United States, the bankrupt appeals.

<p>BankeupTcy (§ 336*) — Peoof of Debt — Amendments—Amowahc®.</p> <p>Where the court in bankruptcy proceedings ordered a sale of the bankrupt’s estate on condition that the purchaser should pay to each unsecured creditor a specified per cent, of his claim, and the purchaser paid the money to the receiver, who turned the same over to the trustee, who declared a dividend to the unsecured creditors, to the exclusion of one on the ground that it had failed to prove its claim in bankruptcy within the statutory time, the court must permit the filing nunc pro tunc of an amended formal proof of the claim.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 523, 521; Dec. Dig. § 336.*]</p>

<p>In Error to the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois; George A. Carpenter, Judge.</p> <p>Action by Elsworth C. Irvine, receiver of the Columbus, Sandusky & Hocking Railroad Company, and others against the Chicago, Wilmington & Vermillion Coal Company. Judgment for defendant, and plaintiff brings error.</p> <p>Plaintiff in error, receiver of the Columbus, Sandusky & Hocking Railroad Company by appointment of the court of common pleas of Franklin county, Ohio, brought this action in the Circuit Court of the United States for the Northern District of Illinois to collect from the defendant, an Illinois corporation, an assessment of 25 per cent, of the par value of capital stock in the railroad company held by the defendant. To the declaration defendant filed a plea that it had no authority to hold stock in ¡the railroad company, and that its act in taking the stock was therefore ultra vires and void. To this plea the plaintiff demurred. On the overruling of the demurrer plaintiff elected to stand, and the court entered judgment in favor of the defendant.</p> <p>The Ohio statutes provide that the debt of corporations shall be secured by the individual liability of the stockholder “over and above the stock owned by him, and any amount unpaid thereon, to a further sum equal in amount to such stock,” authorize a creditor, seeking to charge the stockholders, to file his complaint in any common pleas court to enforce such liability and to give notice by publication to nonresident stockholders, and empower the court to direct the receiver to prosecute in his own name actions “in other jurisdictions to collect the amount found due from any stockholder.”</p> <p>Though ihe declaration is challenged by defendant, it may be assumed that the declaration states facts sufficient to make a prima facie case under the Ohio statutes, inasmuch as the plea particularly sets forth the facts on which the question of ultra vires is predicated.</p> <p>These facts are: That defendant is chartered by Illinois to engage only in the coal business; that in 1886. having on hand 268 coal cars which it did not need in its business, it leased the cars to one Pickard, receiver of the Columbus & Eastern Railroad Company under appointment of an Ohio court; that, under the contract, Pickard executed to defendant IS lease warrants payable monthly; that the agreement provided that, upon the payment of all of the lease warrants and a further named sum. defendant should execute a bill of sale of tiie coal ears; that the agreement provided that the legal title to ¡the coal cars should remain in defendant until the bill of sale should be duly executed, and contained all of the conditions respecting defendant’s right to retake the cars upon default in any payment, and other conditions usually found in equipment leases; that down to the sale of the property of the Columbus & Eastern Railroad Company the receiver had given to defendant, in exchange for lease warrants due up to that time, receiver’s certificates which had been duly authorized; that the sale was made to a purchasing committee representing defendants and others; that, under the arrangement to which defendant was a party, the purchasing committee paid for the property of the Columbus & Eastern Railroad Company at judicial sale with various property and rights put into the hands of the purchasing committee for that purpose; that defendant and other parties to the arrangement agreed to take stock in a new company to be organized under the name of the Columbus & Eastern Railway Company; that defendant received certain bonds of the new company and 105 shares of the stock of the new company; that defendant through the purchasing committee satisfied its subscription for bonds and stock in the new company by turning in its receiver’s certificates and its legal title and right of possession of the 268 coal cars; that by consolidations and other corporate changes defendant’s stock in the Columbus & Eastern Railway Company was exchanged for stock in the Columbus, Sandusky & Hocking Railroad Company, of which plaintiff is the receiver. The question arises on the validity of defendant’s acquirement of stock in ¡the Columbus & Eastern Railway Company.</p>

<p>In Error to the Circuit Court of the United! Stales for the District of Minnesota; Charles F. Amidon, Judge.</p> <p>Action by Martin O. Akre against the Canadian Northern Railway Company. Judgment for plaintiff, and defendant brings error.</p>

Maxey, Judge. Libel by the United States of America against Three Barrels of \ anilla, Tonka, and Compound, to declare a forfeiture for violation of the Pure Pood Act, claimed by the Hudson Manufacturing Company and the Creamery Dairy Company. Prom a judgment of dismissal, the United States appeals.

<p>1. Patents (§ 203*) — Infringement—Patented Combination.</p> <p>Where one element of a patented combination is capable of use for other purposes than as a part of the combination, its sale by the owner of the patent separately does not carry the right to use the entire combination, and such use by the purchaser is an infringement.</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. §§ 290-294; Dec. Dig. § 203.*]</p> <p>2. Patents (§ 328*) — Infringement—Heater and Incubatok.</p> <p>The Hall patent, No. 692,277, for a heater in combination with an incubator, held infringed.</p>

<p>Patents (§ 328*) — Validity and Infringement — Ozonizer.</p> <p>The finding of a jury that the Henney patent, No. 974,789, for an ozonizer, was valid and infringed, held, sustained by the evidence.</p>

<p>1. Patents (§ 328*) — Validity and Infringement — Silo.</p> <p>Tbe Harder patent, No. 627,732, for a silo, claim 4, construed on a motion for a preliminary injunction, and held valid against the claim of anticipation, and infringed.</p> <p>2. Patents (§ 165*) — Construction oe Claims.</p> <p>Unless a patentee bas especially limited himself to a specific form of 'construction, or such limitation is imposed by the prior art or by the ac-lion of tlie Patent OfHce, acquiesced in by him, he is entitled to a broad, construction of Ms claims in accordance with the language thereof.</p> <p>fEd. Note. — For other eases, see Patents, Cent. Dig. § 241; Dec. Dig. § 165.*J</p>

<p>In Equity. Suit by Herbert E. Hildreth against A. Leopold Auer-bach and Joseph S. Auerbach. On demurrer to bill.</p>

<p>At Law. Action by John A. Locker and Elma Locker, trading as R. Locker & Co., against the American Tobacco Company, the American Snuff Company, the Blackwell’s Durham Tobacco Company and the Metropolitan Tobacco Company. On motion to resettle order requiring bill of particulars.</p>

<p>In Admiralty. Suit by the W. J. McCahan Sugar Refining Company against the steamship Julia Luckenbach, with the Insular Line impleaded. On petition by the Insular Line for leave to bring in the claimants as respondents.</p>

In Equity. Action by E. E. Ogden, as trustee in bankruptcy of M. E. Reddish, against M. F. Reddish and the Daniel Briscoe Company,, to avoid a real estate mortgage executed by the bankrupt and recorded by the creditor within four months prior to adjudication, bn the ground that it was a voidable preference.

<p>-o fep •rS ^ CO 5 o ■*-> Oh 0 u tl’s ni 5 Oh O o As u-a rO <U ’3 8^. *-( < ti Í> ! S' p p Ük O hr O • ; P P (ji ^ s & "d «T B 3 ° ^ O ; e w a •B "I >-$</p>

R. E. R. Maxey was convicted of having conspired to commit an offense against the United States, and moves in arrest of judgment. Hie defendant and one Copeland were indicted under section 37 of the Penal Code (Act March 4, 1909, c. 321, 35 Stat. 1096 [U. S. Comp. St. Supp. 1911, p. 1600]), for having conspired to commit an offense against the United States. The offense which it is alleged they had conspired to commit was to violate section 215 of the Penal Code.

<p>In Equity. Suit by the Atlantic Dynamite Company against Shelton 1/. Reger and others. On demurrer to bill.</p>

In the matter of the bankruptcy of Harry Abrams. Proceedings by .E. 'J. Passmore and another for the allowance of a claim as a preferred claim. The referee allowed the claim in part, and claimants petitioned for a review of the order denying the balance of the claim.

In Bankruptcy. In the matter of bankruptcy proceedings of Jay C. Harrington. On motion by Calvin W. French, a judgment creditor, to vacate or modify an order restraining the enforcement of the judgment against a portion of the bankrupt’s wages under the state statute.

In Bankruptcy. In the matter of bankruptcy proceedings of the Floyd & Bohr Company. On petition of the German Insurance Bank to determine the rights of certain preferred labor claimants.

<p>In Bankruptcy. In the matter of bankruptcy proceedings of the Blackstaff Engineering Company. Intervention of E. B. Herring and others, claiming laborers’ liens.</p>

<p>In Error to the District Court of the United States for the Northern District of Texas; Edward R. Meet, Judge.</p>

<p>Appeal from the District Court of the United States for the Northern District of New York.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Virginia, at Richmond, in Bankruptcy.</p>

<p>Appeal from, the District Court of the United States for the Southern District of New York. This cause comes here upon appeal from a deeree dismissing a bill for relief against alleged infringement of two patents. These are No. 889,094, granted May 26, 1908, and No. 889,095, granted. May 26, 1908; both to complainant and for a “code message.” The Dis-triet Court held that the patents are not for patentable subject-matter. Judge Hough’s opinion will be found in 190 Fed. 329.</p>

<p>In Error to the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge. Action at law by Marie Douglas against J. P. Collier. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United’ States for the Eastern District of Louisiana; Rufus E. Foster, Judge.</p>

This cause comes here upon appeal from a decree dismissing the bill of complaint. The suit is the usual one in equity for alleged infringement of letters patent No. 770,024, granted September 13th, 1904, to Ruggiero and Bongiorno for a horn for phonographs or similar machines, and of letters patent No. 784,385, granted March 7, 1905, for a trumpet for talking machines.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p>

<p>In Error to the District Court of' the United States for the Northern District of Texas; Edward R. Meek, Judge.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p>